People v. Buenrostro

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DORA BUENROSTRO,

Defendant and Appellant.

S073823

Riverside County Superior Court

CR59617

December 3, 2018

Justice Kruger filed the opinion of the court, in which Chief

Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,

Cuéllar, and Mauro* concurred.

*

Associate Justice of the Court of Appeal, Third Appellate

District, assigned by the Chief Justice pursuant to article VI,

section 6 of the California Constitution.

PEOPLE v. BUENROSTRO

S073823

Opinion of the Court by Kruger, J.

After a jury found defendant Dora Buenrostro competent

to stand trial, a separate jury convicted her of the first degree

murders of her children, Susana, Vicente, and Deidra. (Pen.

Code, § 187.) The jury found true three multiple-murder

special-circumstance allegations (id., § 190.2, subd. (a)(3)) and

allegations that defendant personally used a knife in the

commission of each murder (id., §§ 1192.7, subd. (c)(23), 12022,

subd. (b)). After a penalty trial, the same jury returned a verdict

of death. The trial court denied defendant’s motion for a new

trial and for modification of the verdict (id., § 190.4, subd. (e))

and sentenced her to death. This appeal is automatic. (Id.,

§ 1239, subd. (b).)

We affirm the judgment as to guilt, vacate two of the three

multiple-murder special-circumstance findings, reverse the

judgment as to the sentence of death, and remand the matter

for a new penalty determination.

I. FACTS

A. Guilt Phase

The bodies of the three victims were found on October 27,

1994. Each victim had suffered fatal stab wounds. Beginning

on that date and continuing through her trial testimony,

defendant blamed the murders on her estranged husband,

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Alejandro Buenrostro (who was known as Alex). In closing

argument, however, the defense conceded that Alex, who had an

alibi, could not have killed the children. The guilt phase focused

on whether there was sufficient evidence to establish that

defendant committed the murders and did so willfully and with

premeditation and deliberation.

1. Prosecution Evidence

Defendant and Alex were married in 1982. Until their

separation several years later, they lived in Los Angeles with

their three children, Susana, Vicente, and Deidra (ages nine,

eight, and four, respectively, at the time of the murders). Alex

worked as an auto refinisher painter, and defendant worked for

seven years as a file clerk and interpreter for a law firm. In

1990, defendant moved with the children to San Jacinto in

Riverside County. Alex remained at the Los Angeles residence

and saw the children twice a month.

a. Events of Tuesday, October 25, 1994

Between 5:00 and 6:30 p.m. on Tuesday, October 25, 1994,

defendant was seen driving in her car with her three children.

Around 6:30 p.m., defendant borrowed $10 from a neighbor,

David Tijerina, for gasoline because she was going to drive to

Los Angeles to see her husband. Tijerina watched defendant

drive out of the apartment complex with Deidra in the car.

Defendant arrived at Alex’s residence in Los Angeles,

alone and unannounced, about 11:00 p.m. and stayed for two

hours. She asked to see Alex’s gun. He removed the bullets,

showed her the gun, and then put it away. He asked defendant

about the children, and she told him they were fine. At some

point, defendant went to the kitchen and then approached Alex,

who was in the bedroom. She was holding a steak knife and

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wearing a red glove. She made stabbing motions with the knife

and asked Alex why he was afraid of dying. She threatened to

hit him where “it hurts the most” because he had “never given

her our separation.” He called 911. Defendant swung at him

with the knife a couple of times, but he was able to get away and

ran outside.

Police arrived within 20 minutes, at 1:15 a.m. Defendant

was standing in the doorway of the residence, holding the knife,

but complied when police commanded her to drop it. She told

the police she was there to pick up her child, whom she accused

Alex of taking to buy shoes earlier in the day and not returning.

The police observed no children at the residence or in

defendant’s car, a dark-colored four-door Oldsmobile lacking a

child’s car seat. The police advised her to return to San Jacinto

and file a missing child report, and she left.

b. Events of Wednesday, October 26, 1994

On Wednesday, October 26, 1994, about 10:30 a.m.,

defendant went to the San Jacinto Police Department and

reported to Officer Blane Dillon that her estranged husband had

taken her youngest child two days earlier and not brought her

back. The officer informed her law enforcement could not

intervene unless her husband was in violation of a court order

providing he was not permitted to visit with the child.

Defendant left the police department.

Later that day, about 2:00 p.m., defendant’s sister, Angela

Montenegro, saw her at a gas station in San Jacinto. Defendant

was alone and driving her black Oldsmobile, which had been

washed and had water dripping from the back bumper. Neither

Deidra nor a child’s car seat was in the car. About 3:00 p.m.,

defendant’s next door neighbor, Velia Cabanila, saw Susana and

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Vicente when they stopped briefly to play at her apartment after

school. The children told Cabanila their mother had told them

Deidra was with their father. Deidra had visited Cabanila’s

apartment the day before, by herself. About 7:00 p.m., another

neighbor saw defendant looking over the wall of her apartment.

c. Events of Thursday, October 27, 1994

Cabanila’s and defendant’s apartments shared a common

wall. On Thursday, October 27, 1994, about 3:00 a.m., Cabanila

heard a “really loud thump,” but no other noise, coming from

defendant’s living room.

At 6:40 a.m., defendant entered the San Jacinto Police

Department and reported to the desk clerk her husband was at

her apartment with a knife. Police were immediately

dispatched. The officers entered the apartment and found two

of defendant’s children, Susana and Vicente, lying on separate

sofas in the living room, each covered as if sleeping. Both were

dead, with stab wounds to their necks. Another sofa was

standing on its end at the entrance to the hallway, blocking the

path to the bedrooms and the bathroom. Defendant admitted

she had moved the sofa.

Outside, defendant told police Alex had come to the

apartment that morning. She let him in, and he went to the

bathroom. Defendant thought he was acting strange, so she

went to the police station to notify the police of his behavior.

San Jacinto Police Detective Sergeant Frederick

Rodriguez was assigned as lead investigator. At the police

station, he interviewed defendant, who was not in custody.

Meanwhile, police focused their investigation on Alex. By 9:00

a.m., police located him at the office of his employer in Los

Angeles and took him into police custody for questioning. By

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early the next morning, the police ruled him out as a suspect

and released him from custody.2

Later, around 6:00 p.m., Deidra’s body was discovered by

children playing in an abandoned post office in Lakeview. A

deputy with the Riverside County Sheriff’s Department

responded to the scene and saw Deidra strapped in a child’s car

seat. There was blood and visible trauma to her mouth and

neck. An object with a handle, possibly a screwdriver or pen

knife, was stuck in her throat.

Officer Dillon arrived at the scene about 7:30 p.m. to

investigate. He had received information about the

investigation from other officers during the course of the day.

Based on inconsistencies in defendant’s versions of events,

police focused on her as a suspect.3

d. Physical evidence

Defendant’s car was removed from her apartment complex

and processed for evidence. Her purse and camera case and a

red knit glove were discovered in the trunk of the car. DNA

testing established that six blood samples obtained from

2

Police spoke with Alex’s neighbor, who confirmed (as she

did at trial) she had heard his shower running the morning of

Thursday, October 27, and saw him leave his residence about

7:20 a.m. Given the distance between defendant’s apartment in

San Jacinto and Alex’s workplace in Los Angeles, as well as the

time defendant reported Alex was at her apartment in

possession of a knife (6:40 a.m.), Alex was ruled out as a suspect.

3

Detective Rodriguez’s interview of defendant began

around 10:30 a.m., shortly after the bodies of Susana and

Vicente were discovered in her apartment. A tape recording of

the entire interview was played for the jurors. A transcript of

the recording was also given to the jurors.

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defendant’s car matched Deidra’s DNA profile. Defendant, Alex,

Susana, and Vicente were eliminated as sources for the blood.

Hairs found on Deidra’s hand and leg were determined to

be similar to defendant’s. Tire impressions lifted from an area

near the abandoned post office where Deidra’s body was found

matched the tread designs of the three different types of tires on

defendant’s car.

e. Autopsy results

All three children bled to death from multiple stab wounds

to the neck. Susana suffered defensive wounds to her right

hand; four stab wounds to the front of her neck, two of which

went into the bone of her spine; superficial cuts to her neck; and

a perforation of her left chest cavity. The stab wounds ranged

in depth from one to three inches. One stab wound severed the

left subclavian artery and another cut halfway through the

external jugular vein. These two injuries caused exceedingly

rapid bleeding and likely rendered Susana unconsciousness in

less than a minute.

Vicente suffered numerous defensive wounds on his

hands, two stab wounds to the front of his neck, and abrasions

and contusions on his neck and right clavicle. One of the stab

wounds cut almost completely through the right common carotid

artery, which comes from the heart. Vicente died from rapid

bleeding, which likely rendered him unconsciousness in less

than a minute.

Deidra died from multiple stab wounds to her neck. A

piece of a knife blade three-quarters of an inch wide by two to

three inches in length had broken off and was embedded in the

bone in her neck area. A metallic tip of what appeared to be a

ballpoint pen was found in the soft tissue of her neck. Deidra

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had suffered a perforation of the chest cavity and blunt force

trauma to her skull, which was consistent with her head being

slammed against the car seat while she was being stabbed.

There were no defensive wounds on her body. Deidra’s body

exhibited signs of decomposition. The time of her death could

not be determined.

2. Defense Evidence

Defendant testified in her own defense. On direct

examination, she testified that the last time she saw Deidra was

9:00 or 10:00 a.m. on Tuesday, October 25, 1994, when Alex

came to her apartment and took her. Between 11:00 a.m. and

noon, defendant went to the San Jacinto Police Department to

report Deidra missing. At 11:00 p.m. that night, defendant

drove to Alex’s residence in Los Angeles and checked the house

for Deidra. She picked up a knife to defend herself during an

argument with Alex. She threatened him but did not try to stab

him, and she denied that she wore a red glove on her hand. Alex

called the Los Angeles Police, and defendant dropped her knife

when ordered to do so. She complained to police that Alex had

taken Deidra and had not returned her. When the police

advised her to leave, she left and returned to San Jacinto. The

following morning, defendant went to the San Jacinto Police

Department seeking assistance regarding Deidra’s

disappearance.

Defendant testified that at 5:00 a.m. on Thursday

morning, October 27, 1994, Alex came to her apartment. When

she let him in, he went straight to the bathroom. Defendant left

the apartment because of the Tuesday evening altercation with

him in Los Angeles. She left Susana and Vicente in the

apartment. She arrived at the police department between 5:30

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and 6:00 a.m., telling police she had had an argument with Alex

on Tuesday and he had taken her daughter. She asked them to

check her apartment and speak with Alex. Defendant said he

did not have a knife or other weapon.

Defendant returned to her apartment complex with the

police and waited outside. About 7:30 a.m., she was informed

her children were dead. Defendant went to the police

department, where she remained all day for questioning. She

denied killing the children, claiming someone had planted the

blood evidence in her car. She had no explanation for the tire

impressions that matched the tires on her car and said the red

gloves found in the passenger compartment and trunk of her car

belonged to a Betty Buenrostro. Defendant admitted having a

prior felony conviction for grand theft.

B. Penalty Phase

1. Prosecution Evidence

The prosecution presented evidence of defendant’s prior

conviction for grand theft, her violent conduct while

incarcerated, and the impact of the murders on the victims’

family members and on the community.

a. Prior felony convictions (Pen. Code, § 190.3,

factor (c))

The parties stipulated that defendant pleaded guilty to

felony grand theft (Pen. Code, § 487.1) on September 1, 1988.

b. Prior unadjudicated criminal activity involving

the use of or express or implied threat to use

force or violence (Pen. Code, § 190.3, factor (b))

In February 1995, while awaiting trial in this case,

defendant had a physical altercation with Deputy Johnnie

Anaya and a nurse who was administering medications to

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inmates housed on the medical floor in the jail. The altercation

occurred when defendant stepped outside her cell, refused an

order to return to her cell, and raised her hand to the deputy

and nurse. Defendant grabbed the nurse’s arm and, when her

hand slipped, held tightly onto her sleeve. Anaya forced

defendant back into her cell. The deputy and defendant

struggled, fell to the floor, and struggled further before other

deputies subdued defendant.4

Another incident occurred in May 1996. Deputy

Stephanie Rigby was supervising inmates at the jail and

permitted defendant to leave the day room. Defendant walked

into a sally port area and removed a wringer from a custodial

mop bucket. Observing her from a glass-enclosed control room,

Deputy Rigby commanded her to return to the day room.

Defendant refused to comply and held the mop wringer over her

shoulder like a baseball bat. When she refused to drop the

wringer, back-up deputies were called to assist. A deputy had

to physically remove the wringer from her grip. Defendant did

not attempt to hit any of the deputies with the wringer.5

c. Victim impact testimony

The prosecution presented the testimony of the victims’

older half-sister, Alejandra Buenrostro, their father, Alex

Buenrostro, and Deborah De Forge, the principal of the

4

The trial court ruled evidence of the incident admissible

under Penal Code section 190.3, factor (b), as showing a battery

(id., § 242) involving the express or implied use of force or

violence, or the threat of force or violence.

5

The trial court ruled the incident admissible under Penal

Code section 190.3, factor (b), as misdemeanor exhibiting a

deadly weapon in a threatening manner (id., § 417).

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elementary school Susana and Vicente attended. The

prosecution played a videotape of Alex at the police station

showing the moment he learned Susana and Vicente had been

murdered. The prosecution also presented a video montage of

photographs of the victims in life and their shared gravesite.

2. Defense Evidence

Defendant testified on her own behalf, claiming she had

been framed by police in general and Officer Blane Dillon in

particular, whom she accused of having lied about the timeline

of events and planting the incriminating evidence in her car. In

her view, the expert had testified the hairs found on Deidra

could have belonged to anyone. She denied being mentally ill.

Defendant maintained her innocence of the charges and wanted

to be sentenced to life without the possibility of parole because

she had been framed.

The defense also presented testimony from defendant’s

former neighbor David Tijerina, niece Brenda Davalos, and

sisters Martha Gudino and Maria Perez and their mother,

Arcelia Zamudio. The evidence briefly sketched defendant’s

family background, portrayed her as a loving mother, and

related a change in her attitude and behavior in the months

preceding the murders. Defendant’s family members asked for

mercy.

II. COMPETENCY PROCEEDINGS

A. Factual and Procedural Background

Before trial, the trial court declared a doubt as to

defendant’s competence to stand trial and suspended the

criminal proceedings under Penal Code section 1368 for a

competency determination. The question was submitted to a

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jury. At the competency trial, defense experts — psychologists

Michael Perrotti and Michael Kania and psychiatrist Mark

Mills — testified that defendant was not competent to stand

trial. Court-appointed experts — psychiatrist Jose Moral and

psychologist Craig Rath — testified that she was competent.

The jury found defendant competent to stand trial.

1. Defense Evidence

a. Psychologist Michael Perrotti

Psychologist Michael Perrotti, Ph.D., spent 10 hours

administering psychological tests and evaluating defendant in

March and July 1995.

Defendant related to Dr. Perrotti that she had a ninth

grade education and had been physically abused by her

husband. Regarding her current circumstances, defendant

reported that “everyone was against her,” jail deputies

conspired against her, she was being poisoned by a gas leak in

her jail cell, she was hearing voices and acting aggressively to

the point that she had to be handcuffed, and the medical staff at

the jail was conducting experiments on her for research

purposes. Defendant appeared depressed and confused. Her

thoughts were disorganized and her speech pressured. She

suffered from significant impairment of memory and

concentration caused by a mental disorder, and Dr. Perrotti

believed there was “a possibility of a neuro-psychological

problem.” Dr. Perrotti did not perform neuropsychological

testing because defendant would not cooperate.

Dr. Perrotti opined defendant did not understand the legal

system and had no insight into her lack of understanding.

Everything with defendant was “clouded with suspicion,

distrust, and [beliefs that] people are acting against her,” all of

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which hindered her ability to work with her attorney or any

attorney. Defendant was aware of the murder charges against

her but denied knowing who the victims were. She wanted to go

to court so she could be released and return home.

Dr. Perrotti diagnosed defendant as a paranoid

schizophrenic. He did not include this diagnosis in his written

report because he believed a description of defendant’s behavior

and her “problems” was easier to understand than a diagnostic

label, and had not used the label “paranoid schizophrenic” with

regard to defendant except with trial counsel. Over the course

of Dr. Perrotti’s evaluation of defendant, trial counsel would

occasionally ask him, “Do you think [defendant’s]

schizophrenic?” He admitted that his diagnosis of defendant as

a paranoid schizophrenic did not necessarily mean that she was

incompetent. Based on the test results, Dr. Perrotti found no

signs defendant was malingering.

b. Psychologist Michael Kania

Psychologist Michael Kania, Ph.D., met with defendant on

six or seven occasions before he evaluated her for competency

during his visits on March 3 and April 17, 1995. He

administered the Minnesota Multiphasic Personality Inventory

(MMPI) on December 17, 1994. Dr. Kania explained that

although this psychological test is not relevant to the issue of

competency, a determination of malingering can be made based

on a comparison of the test results to the clinician’s impressions.

Dr. Kania found no evidence defendant malingered on the

MMPI. He acknowledged defendant’s scores had been evaluated

by Dr. Alex Caldwell’s testing service, which produced a report

stating her answers suggested “extensive intentional

overstatement” and “some degree of deliberate malingering.”

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The report also included a warning to use caution in

interpreting defendant’s test results because she did not answer

all items.

Based on his interviews with defendant, Dr. Kania

diagnosed her as suffering from delusional disorder with

paranoid delusions. For example, defendant thought her sister

spoke a different language and had been influencing her

children in this language. Defendant also believed gas was

being pumped into her jail cell. He concluded she was

incompetent to stand trial; although she understood the nature

of the charges against her and had a basic understanding of the

legal proceedings, she could not rationally assist counsel.

c. Psychiatrist Mark Mills

Psychiatrist Mark Mills, M.D., met with defendant on

November 16, 1994, and April 27, 1995, for a total of two hours.

He questioned whether she had been forthcoming during the

interviews and believed she may have been “paranoid but hiding

symptoms.” Defendant discussed her delusions with family

members and others, but refused to talk with him about them.

He diagnosed her as suffering from “a significant psychotic

disorder, probably a delusional disorder.” Because her diagnosis

rendered her unable to work rationally with any attorney, he

believed her to be incompetent to stand trial.6

d. Psychiatrist Herminio Academia

On February 26, 1995, Riverside County Mental Health

Department staff psychiatrist Herminio Academia, M.D.,

6

Dr. Mills explained that although he did not explicitly

state in his report that defendant was incompetent, he did so

impliedly.

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treated defendant at the jail for about 20 minutes. Defendant

was complaining her cell was too hot, she was being “cooked,”

and “gas was going to her cell.” Dr. Academia diagnosed

defendant with a nonspecific psychotic disorder and prescribed

Haldol to relieve her delusions and paranoia, but she refused the

medication.

e. Psychiatrist Austin Anthony

On February 27, 1995, Riverside County Department of

Mental Health staff psychiatrist Austin Anthony, M.D., treated

defendant. She spoke in a rambling manner about the room

being hot and about the smell of gas. She appeared friendly and

cooperative and had good eye contact, but on occasion seemed

confused and bewildered. She refused to take medication

prescribed for her. On February 28, 1995, Dr. Anthony’s last

appointment with defendant, he found her to be friendly and

alert and no longer complaining of the gas smell.

f. Testimony of defendant’s family members and

Regena Acosta

Defendant’s sisters Angela Montenegro, Martha Gudino,

and Maria Perez described her delusions and bizarre behavior.

For example, Montenegro testified that in July 1994, when she

and her two children were living with defendant and her three

children, defendant came home from church one day and took

the tacos the children were eating, threw them in the garbage,

and told Montenegro to move out. On several occasions during

the next month, defendant accused Montenegro of feeding

defendant’s children poisoned taco meat, being a witch, and

turning into a snake and biting her (defendant’s) leg. On cross-

examination, Montenegro testified she and defendant had

attended the same church, and the church asked her

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(Montenegro) to quit attending services because of a

relationship she had with a man named Roberto. Defendant

accused Montenegro of being a prostitute. Montenegro told the

police that defendant’s anger and name-calling might have had

something to do with Roberto.

Gudino visited defendant at the jail with their other sister,

Perez, and their mother. Trial counsel was also present during

the visit and asked Gudino to persuade defendant to sign

medical information release authorization forms for any medical

provider who treated defendant during her life. For about an

hour and 45 minutes, Gudino, Perez, and their mother tried to

persuade defendant to sign the forms. She refused and told her

family that they were against her.

Regena Acosta read about defendant in the newspapers

after the murders. She was motivated to minister to defendant

and visited her in jail four or five times between about

November 1994 and February 1995. Acosta testified defendant

told her she believed the jail guards were putting “stuff” in her

food to make her sick. Defendant also told Acosta she did not

understand what was going on at court.

2. Prosecution Evidence

a. Court-Appointed Psychiatrist Jose Moral

On March 25, 1995, court-appointed psychiatrist Jose

Moral, M.D., examined defendant at the jail. She was alert and

oriented and understood the purpose of his visit. She knew she

had been charged with murdering her three children. She

demonstrated knowledge and understanding of the criminal

legal process, including the various stages from arrest through

trial and sentencing. Before having her children, she had been

employed at a civil law firm as an assistant to the legal

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secretaries and worked with attorneys for about seven years.

Defendant complained the proceedings were progressing too

slowly. She denied having delusions or hallucinations and

exhibited no psychotic symptoms during the interview.

On July 26, 1995, Dr. Moral interviewed defendant a

second time. Defendant again demonstrated knowledge of the

legal system. Her relationship with counsel had improved by

this time. She explained that her preoccupation with the smell

of gas in her cell stemmed from news reports about deaths in

Riverside caused by exposure to gas fumes. She denied having

the psychotic symptoms reported by other psychologists and

psychiatrists and gave Dr. Moral reasonable explanations for

the reported symptoms. Defendant had no thought disorder.

She was able to carry out her interview with Dr. Moral without

difficulty and was “purposeful in her answers,” “cooperative,”

“reasonable,” and “logical.” Dr. Moral believed defendant was

competent to stand trial. During a break in the proceedings on

the day he testified, Dr. Moral interacted with defendant and

discussed competency issues with her. After this contact,

Dr. Moral continued to believe defendant was competent to

stand trial.

b. Court-Appointed Psychologist Craig Rath

Psychologist Craig Rath, Ph.D., was appointed on March

14, 1995, to evaluate defendant’s competence to stand trial.

Previously, on October 28, 1994, at the request of the Riverside

District Attorney’s Office, Dr. Rath had interviewed defendant

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for about an hour after her arrest.7 He taped the interview, and

the audiotape was played for the jury in its entirety.8

Defendant’s demeanor during the interview was appropriate.

She exhibited no signs of mental illness or psychosis putting her

“out of contact with reality.” Defendant’s long-term and short-

term memory were unimpaired. She communicated very well

and protected information she did not want to share.

Dr. Rath administered the MMPI to defendant. She

completed 400 of 566 questions. Her answers showed a “saw-

tooth profile,” which is a classic sign of malingering.

After Dr. Rath was appointed by the court to evaluate

defendant’s competency, he unsuccessfully attempted to

evaluate defendant on March 24, 1995, and April 3, 1995.9

Based on his October 28, 1994, interview with her shortly after

the murders, Dr. Rath believed she was competent to stand trial

because she “does not have any major mental illness [that]

would preclude her from understanding what’s going on or

cooperating with her attorney.”

Although Dr. Rath had first interviewed defendant shortly

after her arrest, at the request of the District Attorney’s office,

he did not declare a conflict when the court appointed him on

March 14, 1995, to render an opinion as to her competence to

7

Defendant had waived her right against self-incrimination

and agreed to speak to a “doctor.”

8

The jury was also given a copy of the transcript of the

interview.

9

On his first attempt, deputies at the jail informed Dr. Rath

defendant had refused to be handcuffed, which was required

when she was transported outside her cell because she “had

been attacking people.” When he returned to evaluate

defendant in April, she refused to see him.

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stand trial. Dr. Rath denied he had a conflict under the Board

of Medical Quality Assurance Ethics Committee’s standards.

He testified he had contacted the committee and was told he had

not acted unethically. Regarding his initial visit with

defendant, Dr. Rath pointed out it would have been unethical

for him to refuse to see her, given she was potentially suicidal

after the deaths of her three children.

c. Jail Psychiatrist Romeo Villar

Between October 28, 1994, and March 1, 1995, jail

psychiatrist Romeo Villar, M.D., saw defendant several times

while she was in custody. During his last contact with her in

March 1995, defendant denied having hallucinations or suicidal

ideations. Dr. Villar testified defendant had fair insight and

judgment, and her affect was subdued.

3. Defense Rebuttal Evidence

Catherine Moreno, a paralegal employed by trial counsel,

had had contact with defendant approximately 10 times by the

time she testified at the competency trial. Moreno testified that

defendant could not structure coherent paragraphs, although

Moreno could not recall ever having read anything written by

defendant. Moreno had never tried to talk with defendant about

the facts of her case. Defendant refused Moreno’s numerous

requests to sign forms to authorize the release of information

and failed to provide any explanation. Moreno acknowledged

she could have obtained the documents with a subpoena.

Sherry Skidmore, Ph.D., a clinical and forensic

psychologist, had served on local, state, and national

psychological ethics committees. She reviewed the results of the

MMPI test Dr. Rath administered to defendant. Based on those

scores, Dr. Skidmore could not render an opinion as to whether

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or not defendant was malingering. In her opinion, no

psychologist would determine malingering from MMPI results

alone. A determination of malingering depends on a number of

objective measures, including a follow-up interview to clarify

specific parts of the malingering assessment, such as distortion

and over-reporting of symptoms. For a forensic psychologist to

render an opinion regarding an individual’s competence based

on an interview not conducted for the purpose of determining

competence would fall below the standard of care.

4. Surrebuttal

On October 27, 1995, George Groth, a mental health

clinician at the jail, saw defendant at her request. Defendant

was anxious about her upcoming trial. Groth found defendant’s

thinking clear and her speech understandable, and she

exhibited no signs of mental illness. The parties stipulated this

was the only time defendant was seen by the jail’s Forensic

Mental Health unit between September 1, 1995, and the day her

competency trial commenced, October 26, 1995.

The parties also stipulated that on November 1, 1995, a

search warrant was served in defendant’s jail cell. Two

documents written by defendant in Spanish were confiscated

during the search.10

10

Additional details concerning the two documents are

provided in part II.B.4., post.

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B. Discussion

1. Constitutionality of the Definition of Incompetence

to Stand Trial Under Penal Code Section 1367,

Subdivision (a), and CALJIC No. 4.10

The due process guarantees of both the federal and state

Constitutions forbid the trial of a criminal defendant while he

or she is mentally incompetent. (See People v. Mickel (2016) 2

Cal.5th 181, 194–195.) In California, the determination

whether a criminal defendant is competent to stand trial is

governed by Penal Code section 1367 (section 1367), which

provides that a defendant is mentally incompetent “if, as a

result of mental disorder or developmental disability, the

defendant is unable to understand the nature of the criminal

proceedings or to assist counsel in the conduct of a defense in a

rational manner.” (§ 1367, subd. (a).) Consistent with that

standard, the jury in this case was instructed with CALJIC

No. 4.10 (Doubt of Present Mental Competence), which informed

the jury that its task was to “decide whether the defendant is

mentally competent to be tried for a criminal offense,” and went

on to explain: “Although on some subjects her mind may be

deranged or unsound, a person charged with a criminal offense

is deemed mentally competent to be tried for the crime charged

against her if, one, she is capable of understanding the nature

and purpose of the proceedings against her; two, she

comprehends her own status and condition in reference to such

proceedings; and, three, she is able to assist her attorney in

conducting her defense in a rational manner. [¶] The defendant

is presumed to be mentally competent. The effect of this

presumption is to place upon the defendant the burden of

proving by a preponderance of the evidence that she is mentally

incompetent as a result of a mental disorder.”

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Defendant contends that the statutory definition of

mental competence in section 1367 is inadequate to safeguard a

defendant’s due process rights because it requires proof that a

mental disorder or developmental disability rendered the

defendant unable to understand the proceedings against him or

her or to assist counsel with his or her defense. She also

contends that both the statutory definition and CALJIC

No. 4.10 are inadequate because they fail to require proof of (a)

both a “rational” and a “factual” understanding of the criminal

proceedings, and (b) a “present” ability to assist counsel in a

rational manner. She contends these infirmities, separately and

together, violated her right to substantive due process under the

Fourteenth Amendment and require reversal of the entire

judgment. Defendant’s contentions lack merit.

a. Legal background

As a matter of due process, “[a] defendant may not be put

to trial unless he ‘ “has sufficient present ability to consult with

his lawyer with a reasonable degree of rational understanding

. . . [and] a rational as well as factual understanding of the

proceedings against him.” ’ ” (Cooper v. Oklahoma (1996)

517 U.S. 348, 354, quoting Dusky v. United States (1960)

362 U.S. 402, 402 (per curiam) (Dusky).) A trial court’s failure

“to employ procedures to protect against trial of an incompetent

defendant deprives him of his due process right to a fair trial

and requires reversal of his conviction.” (People v. Medina

(1990) 51 Cal.3d 870, 881–882, citing Drope v. Missouri (1975)

420 U.S. 162, 171 (Drope).) “ ‘Even when a defendant is

competent at the commencement of his trial, a trial court must

always be alert to circumstances suggesting a change that would

render the accused unable to meet the standards of competence

to stand trial.’ [Citation.] State constitutional authority is to

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the same effect. [Citation.]” (People v. Lightsey (2012) 54

Cal.4th 668, 690–691 (Lightsey).)

“The applicable state statutes essentially parallel the

state and federal constitutional directives.” (Lightsey, supra,

54 Cal.4th at p. 691.) Section 1367, subdivision (a), provides in

pertinent part: “A person cannot be tried or adjudged to

punishment . . . while that person is mentally incompetent. A

defendant is mentally incompetent for purposes of this chapter

if, as a result of mental disorder or developmental disability, the

defendant is unable to understand the nature of the criminal

proceedings or to assist counsel in the conduct of a defense in a

rational manner.”

Penal Code section 1368 (section 1368) provides in

relevant part: “(a) If, during the pendency of an action and prior

to judgment . . . , a doubt arises in the mind of the judge as to

the mental competence of the defendant, he or she shall state

that doubt in the record and inquire of the attorney for the

defendant whether, in the opinion of the attorney, the defendant

is mentally competent. If the defendant is not represented by

counsel, the court shall appoint counsel. At the request of the

defendant or his or her counsel or upon its own motion, the court

shall recess the proceedings for as long as may be reasonably

necessary to permit counsel to confer with the defendant and to

form an opinion as to the mental competence of the defendant at

that point in time. [¶] (b) If counsel informs the court that he

or she believes the defendant is or may be mentally incompetent,

the court shall order that the question of the defendant’s mental

competence is to be determined in a hearing which is held

pursuant to [Penal Code] Sections 1368.1 and 1369. If counsel

informs the court that he or she believes the defendant is

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mentally competent, the court may nevertheless order a

hearing.”

“[A] trial court is obligated to conduct a full competency

hearing if substantial evidence raises a reasonable doubt that a

criminal defendant may be incompetent. This is true even if the

evidence creating that doubt is presented by the defense or if the

sum of the evidence is in conflict. The failure to conduct a

hearing despite the presence of such substantial evidence is

reversible error.” (Lightsey, supra, 54 Cal.4th 691, citing People

v. Welch (1999) 20 Cal.4th 701, 737–738.)

The law presumes a person is competent to stand trial.

(Pen. Code, § 1369, subd. (f).) “When the defendant puts his or

her competence to stand trial in issue, the defendant bears the

burden of proving by a preponderance of the evidence that he or

she lacks competence.” (People v. Mendoza (2016)

62 Cal.4th 856, 871; see § 1369, subd. (f); Medina v. California

(1992) 505 U.S. 437, 446 (Medina) [allocation of the burden of

proof to a criminal defendant to prove incompetence does not

violate procedural due process].)

b. Penal Code section 1367’s requirement of proof

of mental disorder or developmental disability

Defendant contends that the definition of mental

incompetence under section 1367, subdivision (a), fails to meet

the constitutional standard because it requires proof of a mental

disorder or developmental disability. She contends that United

States Supreme Court decisions, by contrast, have defined

competence to stand trial solely in the functional terms of a

defendant’s ability to understand the nature of the proceedings

against her and to assist her attorney in preparing her defense

in a rational manner. (See Dusky, supra, 362 U.S. at p. 402;

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Drope, supra, 420 U.S. at p. 171.) She contends that section

1367’s requirement of proof of a mental disorder or

developmental disability unconstitutionally narrows the

definition of incompetence, thereby depriving a “subset of

defendants”—those who are unable to understand the

proceedings and assist counsel in a rational manner but do not

“suffer from a recognized mental disorder or developmental

disability”—of the right not to be tried while incompetent.

In her briefing, defendant did not specify whether her

claim relates to the facial validity of section 1367, subdivision

(a), or the statute’s validity as applied to the particular

circumstances of her case. At oral argument, however, appellate

counsel clarified that defendant’s challenge is a facial attack.

“ ‘ “To support a determination of facial unconstitutionality, . . .

[challengers] cannot prevail by suggesting that in some future

hypothetical situation constitutional problems may possibly

arise as to the particular application of the statute.” ’ ” (Tobe v.

City of Santa Ana (1995) 9 Cal.4th 1069, 1084.) Rather, the

“minimum” our cases have accepted is a showing that the

statute is invalid “in the generality or great majority of cases.”

(San Remo Hotel v. City and County of San Francisco (2002)

27 Cal.4th 643, 673; cf. Washington State Grange v. Washington

State Republican Party (2008) 552 U.S. 442, 449 [noting that

while some justices of the high court have embraced a more

demanding standard, all justices “agree that a facial challenge

must fail where the statute has a ‘ “plainly legitimate

sweep” ’ ”].)

In this case, defendant has failed to demonstrate that

section 1367, subdivision (a), is facially invalid; indeed, she has

failed to identify any case (including her own) in which section

1367’s mental disorder or developmental disability requirement

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results in the violation of due process.11 Contrary to her

argument, the due process right not to be tried while

incompetent has long been understood in terms of the causal

relationship between the defendant’s mental condition and his

or her trial-related functional abilities. As the high court

explained in Drope, the constitutional right is rooted in the

venerable common law rule “that a person whose mental

condition is such that he lacks the capacity to understand the

nature and object of the proceedings against him, to consult with

counsel, and to assist in preparing his defense may not be

subjected to a trial.” (Drope, supra, 420 U.S. at p. 171.)

Section 1367, like many other similar statutes in other

jurisdictions, thus articulates a causal relationship between the

existence of a mental disorder and functional impairments.12

11

When pressed at oral argument, appellate counsel posited

a scenario in which a defendant does not understand the nature

of the proceedings because of cultural differences, as opposed to

a mental disorder or developmental disability. But cultural

differences alone do not give rise to a lack of capacity to

understand the nature of the proceedings or assist counsel in

preparing a defense, as the Dusky standard requires.

12

When the statute was first enacted in 1872, section 1367

provided: “A person cannot be tried, adjudged to punishment,

or punished for a public offense, while he is insane.” Case law

interpreting the provision established that, though a defendant

may have claimed to be “deranged or unsound,” he was not

“insane” for purposes of section 1367 unless he could not

understand the nature and object of the proceedings against him

and could not aid his counsel to conduct his defense in a rational

manner. (People v. Perry (1939) 14 Cal.2d 387, 397, 399.) In

1974, the Legislature amended the statute to codify this

standard, substituting the term “mentally incompetent” for

“insane.” (Assem. Com. on Criminal Justice, Ex Post Facto

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(See, e.g., 18 U.S.C. § 4241(d) [federal statute forbidding trial of

a defendant found to be “presently suffering from a mental

disease or defect rendering him mentally incompetent to the

extent that he is unable to understand the nature and

consequences of the proceedings against him or to assist

properly in his defense”].) The statutory language reflects a

view that, “[a]s a matter of law and logic,” incompetence to stand

trial “must arise from a mental disorder or developmental

disability that limits his or her ability to understand the nature

of the proceedings and to assist counsel.” (Timothy J. v.

Superior Court (2007) 150 Cal.App.4th 847, 860.) On this view,

“[a] defendant who refuses to work with his lawyer out of spite

alone is not incompetent,” for example, “even if that defendant

has a serious mental disease or defect.” (United States v. Garza

(9th Cir. 2014) 751 F.3d 1130, 1136.)

The high court’s cases cast no doubt on the

constitutionality of this approach. On the contrary, that court

has characterized a state statute establishing procedures to

determine whether a person “ ‘as a result of mental disease or

defect lacks capacity to understand the proceedings against him

or to assist in his own defense’ ” as facially “adequate to protect

a defendant’s right not to be tried while legally incompetent.”

(Drope, supra, 420 U.S. at p. 173.) And the court has since

consistently referred to the incompetence inquiry under Dusky

as one that focuses on the defendant’s mental condition and

capacity. (See, e.g., Godinez v. Moran (1993) 509 U.S. 389, 401,

fn. 12 (Moran); see also, e.g., Medina, supra, 505 U.S. at p. 450

[at a competency hearing, “psychiatric evidence is brought to

Analysis of Assem. Bill. No. 1529 (1973 Reg. Sess.) June 12,

1973, pp. 3–6; Stats. 1974, ch. 1511, § 2, eff. Sept. 27, 1974.)

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bear on the question of the defendant’s mental condition”].)

Defendant has offered no sound basis to conclude that this focus

is inconsistent with due process.

To the extent defendant means instead to argue that the

Dusky standard does not require a specific medical diagnosis

drawn from the current version of the Diagnostic and Statistical

Manual of Mental Disorders, we do not disagree. But neither

does section 1367 impose this sort of requirement. Although this

statute requires that the defendant show that, because of a

mental disorder or developmental disability, he or she is unable

to understand the nature of the proceedings or to rationally

assist in his or her own defense, it does not require that the

defendant’s mental disorder fit neatly within the standard

diagnostic taxonomy. We find no inconsistency with Dusky.

c. Asserted omission of certain elements from

Penal Code section 1367’s definition of

competence to stand trial and CALJIC No. 4.10

Defendant next contends that the definition of competence

in section 1367 and in CALJIC No. 4.10 omit necessary elements

from the standard articulated in Dusky, supra, 362 U.S. 402 and

thus fails to satisfy due process requirements. Under Dusky, a

defendant is competent to stand trial if he or she “ ‘has sufficient

present ability to consult with his [or her] lawyer with a

reasonable degree of rational understanding’ ” and “ ‘has a

rational as well as factual understanding of the proceedings

against him [or her].’ ” (Id. at p. 402, italics added.) Defendant

argues that section 1367 and CALJIC No. 4.10 omit the

requirements of “a rational as well as factual” understanding of

the proceedings and a “present” ability to rationally assist

counsel. She contends the jury should be instructed that a

defendant’s understanding of the proceedings “must be based on

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reason, as opposed to delusion, fantasy or some other non-reality

based perception” and encompass the ability to comprehend

facts. She also contends the instructions should require the jury

to determine the defendant has a “present, already-existing

ability,” as opposed to mere “potential capacity,” to rationally

assist an attorney in conducting a defense.

In response to similar arguments, “[w]e have previously

observed that the language of section 1367, from which CALJIC

No. 4.10 is drawn, ‘does not match, word for word, that of Dusky.

But as the Court of Appeal noted in James H. v. Superior Court

(1978) 77 Cal.App.3d 169, 177, “To anyone but a hairsplitting

semanticist, the two tests are identical.” ’ ” (People v. Jablonski

(2006) 37 Cal.4th 774, 808.) What we have said before applies

equally in this case. The United States Supreme Court has itself

articulated the standard for competency in terms similar to

those in section 1367 and CALJIC No. 4.10. (Moran, supra,

509 U.S. at p. 402 [“Requiring that a criminal defendant be

competent has a modest aim: It seeks to ensure that he has the

capacity to understand the proceedings and to assist counsel.”].)

Neither section 1367 nor the instruction is infirm merely

because it fails to focus specifically on the defendant’s “rational

and factual” understanding of the proceedings, as opposed to

focusing on the defendant’s understanding of the proceedings

more generally; we agree with the Attorney General that “one’s

ability to grasp the nature of the proceedings necessarily

encompasses one’s capacity to have a rational and factual

understanding of the proceedings.”

Nor is the statute or instruction flawed because it fails to

refer to the defendant’s “present” ability to assist counsel. Both

the statute and instruction are already phrased in the present

tense, and the statutory scheme makes amply clear that the

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mental competence inquiry focuses on the defendant’s present

abilities, as opposed to the possibility that the relevant abilities

may be restored in the future. (See Pen. Code, § 1370, subd.

(a)(1)(B).) To the extent defendant contends that the point

should have been made even clearer to the jury, she made no

such argument in the trial court and therefore has forfeited any

objection she might have had to the omission of the term

“present ability” from CALJIC No. 4.10. (See People v.

Covarrubias (2016) 1 Cal.5th 838, 876–877 (Covarrubias).)

2. Exclusion of Psychologist Sherry Skidmore’s

Rebuttal Testimony

Defendant contends that the trial court erroneously

excluded rebuttal testimony from defense psychologist

Dr. Sherry Skidmore. The testimony was offered to impeach

Dr. Rath’s testimony concerning his evaluation of defendant’s

competence to stand trial (see Pen. Code, § 1369, subd. (d)).

Specifically, Dr. Skidmore would have testified that:

(1) Dr. Rath’s conclusion that defendant was competent to stand

trial was invalid under professional standards because he did

not conduct an evaluation for the purpose of determining

competence, and (2) Dr. Rath had a conflict of interest because

he was originally referred by the District Attorney to interview

defendant on the day of her arrest and before the court

appointed him to evaluate defendant’s competence. Defendant

asserts that the erroneous exclusion of Dr. Skidmore’s

testimony violated her state and federal constitutional rights to

due process, a fair trial, confrontation, compulsory process, and

to present evidence in support of her case (Cal. Const., art. I,

§§ 15, 16; U.S. Const., 6th & 14th Amends.), and was

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prejudicial, requiring reversal of the entire judgment.13 The

claim lacks merit.

a. Factual and procedural background

Clinical psychologist Craig Rath, Ph.D., testified for the

prosecution that he interviewed defendant and administered

the MMPI on October 28, 1994, the day of her arrest for the

murders. Defendant had waived her Miranda14 rights and had

agreed to speak to a doctor. The purpose of the interview was to

evaluate defendant for possible suicide risk and to gather

13

In this claim and most others on appeal, defendant

contends the asserted error or misconduct she raises infringed

various of her state and federal constitutional rights to a fair

and reliable trial. What we said in People v. Boyer (2006)

38 Cal.4th 412, 441, footnote 17, is equally applicable here: “In

most instances, insofar as defendant raised the issue at all in

the trial court, [s]he failed explicitly to make some or all of the

constitutional arguments [s]he now advances. In each instance,

unless otherwise indicated, it appears that either (1) the

appellate claim is of a kind (e.g., failure to instruct sua sponte;

erroneous instruction affecting defendant’s substantial rights)

that required no trial court action by the defendant to preserve

it, or (2) the new arguments do not invoke facts or legal

standards different from those the trial court itself was asked to

apply, but merely assert that the trial court’s act or omission,

insofar as wrong for the reasons actually presented to that court,

had the additional legal consequence of violating the

Constitution. To that extent, defendant’s new constitutional

arguments are not forfeited on appeal. [Citations.] [¶] In the

latter instance, of course, rejection, on the merits, of a claim that

the trial court erred on the issue actually before that court

necessarily leads to rejection of the newly applied constitutional

‘gloss’ as well. No separate constitutional discussion is required

in such cases, and we therefore provide none.”

14

Miranda v. Arizona (1966) 384 U.S. 436.

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information “for possible later use in court for one side or the

other.”

On March 14, 1995, without objection by the defense, the

trial court appointed Dr. Rath to evaluate defendant’s

competence to stand trial. (See Pen. Code, §§ 1368, 1369, subd.

(a).) Defendant refused to meet with Dr. Rath after his

appointment. Based on his October 28, 1994, interview of

defendant and the results of the MMPI, Dr. Rath opined

defendant was competent to stand trial and did not have “any

major mental illness which would preclude her from

understanding what’s going on or cooperating with her

attorney.” Dr. Rath also opined defendant’s MMPI results

showed a classic profile for malingering.

On cross-examination, defense counsel attempted to

impeach Dr. Rath by establishing that: (1) his evaluation of

defendant on the day of her arrest, October 28, 1994, was not a

competency evaluation under section 1368 because he did not

interview her for that purpose; and (2) his agreement to

interview defendant for the District Attorney shortly after her

arrest created a potential conflict of interest he was required to

disclose when the trial court later appointed him to conduct a

competency evaluation.

Dr. Rath denied there were any ethical problems with the

services he rendered. He also testified that defendant

demonstrated no mental illness during the October 28 interview

and that her behavior at that time appeared to be “all

volitional.” He therefore considered her competent to stand trial

and did not ask her specific questions about her knowledge and

understanding of court proceedings. When counsel attempted

to place Dr. Rath’s ethics in issue because he relied on

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information he gathered during the October 28 interview and

testing, neither of which were for the purpose of evaluating

competency, the expert explained he included the circumstances

of his interview in his written report.

Counsel also asked Dr. Rath whether his inability to

interview defendant in March and April 1995, after his court

appointment, potentially affected the reliability of his opinion

that she was competent to stand trial. Dr. Rath testified he

would have been able to elaborate more but thought his opinion

would remain unchanged. Counsel then asked Dr. Rath about

an ethical standard prohibiting a psychologist from offering

evidence about an individual’s psychological characteristics

when the psychologist has not had “an opportunity to conduct

an examination of the individual adequate to the scope of the

statements, opinions or conclusions to be issued” and requiring

psychologists to make “clear the impact of such limitations on

the reliability and validity” of their testimony.15 Dr. Rath

agreed that no expert should “go beyond the scope of his

database” and claimed he satisfied this ethical requirement by

“outlining exactly what the database is and whatever

limitations there might be.” Dr. Rath explained that in his

report concerning defendant, he “clearly stated how much [he]

had seen her and when [he] had not seen her. . . .”

Dr. Rath agreed with counsel the American Psychological

Association (APA) Guidelines contained in the APA’s Ethical

Handbook governed his professional conduct. Counsel asked

whether he was obligated to comply with the standard directing

that “[f]orensic psychologists avoid providing professional

15

Counsel did not provide a citation to the ethical standard

he purportedly was quoting.

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services to parties in a legal proceeding with whom they have

personal or professional relationships that are inconsistent with

the anticipated relationship.” Dr. Rath identified the quoted

standard as having been taken from the Division 41 Guidelines

for Forensic Psychologists, which he said had been rejected by

the APA and the California licensing board as unclear and

ambiguous. He denied that his having interviewed defendant

for the District Attorney before his court appointment for the

competency evaluation amounted to a conflict of interest.

Dr. Rath testified that he had contacted the Board of Medical

Quality Assurance Ethics Committee and had been told “there

[was] no conflict.”

Counsel then asked Dr. Rath whether he had complied

with the APA guidelines requiring disclosure to the parties of

those factors that “might reasonably affect the decision to

contract with the forensic psychologist[],” including “prior and

current personal or professional activities, obligations, and

relationships that might produce a conflict of interest.”

Dr. Rath repeated that there was no conflict of interest. Counsel

asked Dr. Rath whether the APA guidelines required him to

obtain consent from defendant or her counsel before conducting

his October 28 interview, given that the interview was not court

ordered. Dr. Rath explained that because defendant had no

attorney at that time and had waived her Miranda rights, there

was no violation of the APA guidelines.

On recross-examination, counsel sought to further

question Dr. Rath about his ethical obligations, and the

prosecutor objected on grounds of scope and relevance. The trial

court sustained the objection, stating, “We have covered this

ethics thing completely” and “[w]e are done talking about

ethics.”

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Outside the presence of the jury and before the

prosecution rested its case, trial counsel sought permission to

present testimony by forensic psychologist Sherry Skidmore,

Ph.D., to rebut Dr. Rath’s testimony concerning a psychologist’s

ethical obligations. Specifically, Dr. Skidmore would have

testified that: (1) Dr. Rath’s competency evaluation was

governed by ethical principles that he denied were applicable;

(2) “it is unethical and scientifically invalid to reach a conclusion

on the question of competency when [Dr. Rath] never actually

interviewed [defendant] and performed a specific competency

evaluation”; and (3) under professional standards for forensic

psychologists, Dr. Rath had a conflict of interest because he

interviewed defendant on October 28 at the request of the

District Attorney before he was appointed by the court to

evaluate her competency, and was required to “make certain

disclosures.” Counsel argued Dr. Skidmore’s proffered

testimony was proper rebuttal because the jury had no evidence

other than Dr. Rath’s own testimony on which to base its

determination whether Dr. Rath acted ethically.

The prosecutor objected on the basis the proffered

testimony was collateral and excludable under Evidence Code

section 352. The court sustained the objection, agreeing the

proffered testimony was collateral and noting, “Dr. Rath is not

on trial[,]” and “I allowed [defense counsel] to inquire into the

ethical situation as Dr. Rath understood it, and [he] did and now

we are done with that.” The court permitted counsel to

introduce Dr. Skidmore’s testimony refuting Dr. Rath’s

interpretation of defendant’s MMPI test results.

In rebuttal, Dr. Skidmore testified she had specialized

experience in the areas of professional ethics and on scoring and

evaluating MMPI tests. She testified that a psychologist acts

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below the standard of care by rendering an opinion on

competence to stand trial based on an interview conducted for a

purpose other than determining competence. When the defense

inquired whether a forensic psychologist could reach a valid

conclusion if, at the time of the interview, he or she was working

“in a dual role,” the court sustained the prosecution’s objection

before Dr. Skidmore answered.

b. Discussion

In competency proceedings, each party may offer evidence

to rebut evidence offered by the other side. (Pen. Code, § 1369,

subd. (d).) Evidence bearing on the credibility of a witness is

generally relevant, and therefore admissible, in such a

proceeding. (Evid. Code, §§ 210, 350.)

“As with all relevant evidence, however, the trial court

retains discretion to admit or exclude evidence offered for

impeachment.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9.) The

court “may exclude evidence if its probative value is

substantially outweighed by the probability that its admission

will (a) necessitate undue consumption of time or (b) create

substantial danger of undue prejudice, of confusing the issues,

or of misleading the jury.” (Evid. Code, § 352.) Such rulings are

reviewed for abuse of discretion. (People v. Minifie (1996)

13 Cal.4th 1055, 1070; see People v. Young (2005)

34 Cal.4th 1149, 1199.)

Although the trial court characterized Dr. Skidmore’s

proffered testimony as “collateral,” the testimony was

unquestionably relevant: Because professional psychologists

and psychiatrists are permitted to render an opinion on the

ultimate issue of the defendant’s competence, their adherence to

or disregard of professional standards in forming those opinions

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is relevant to their credibility as experts. The question here is

whether the trial court appropriately weighed the probative

value of the testimony against the probability that its admission

would necessitate undue consumption of time, under Evidence

Code section 352. We ultimately need not answer the question,

however, because even if we were to assume for the sake of

argument that the trial court abused its discretion in excluding

the evidence, any such error was clearly harmless.

Dr. Skidmore would have testified that Dr. Rath violated

professional ethical standards for a forensic psychologist

because his evaluation of defendant’s competence to stand trial

was based on an interview not designed for the purpose of

evaluating competence to stand trial. She also would have

testified that Dr. Rath had a conflict of interest when he was

appointed to evaluate defendant’s competence because before

his appointment it was the prosecution that initially engaged

him to interview her. As defendant emphasizes, the trial court’s

limitation on Dr. Skidmore’s testimony had the effect of

precluding the jury from hearing from any expert, other than

Dr. Rath himself, regarding relevant professional ethical

standards for forensic psychologists.

Ultimately, however, the circumstances of Dr. Rath’s

prearrest examination and its limits on assessing competency

were fully litigated, despite the limitation on the defense’s

rebuttal evidence. In response to defense questioning, Dr. Rath

himself agreed that no expert should “go beyond the scope of his

data base.” As Dr. Rath also noted, his report had explained

how much he had seen defendant and his failures to meet with

her following his court appointment. Further, the jury heard

testimony from Dr. Skidmore that (1) it is “below the standard

of care” for a forensic psychologist to render an opinion about an

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individual’s competence to stand trial when the individual was

not interviewed for that purpose,16 and (2) it is unethical for a

psychologist to form an opinion about malingering based on the

limited information provided by MMPI results.

Despite this evidence, as well as the testimony of two

defense experts opining that defendant was incompetent, the

jury was unconvinced. Other evidence, including the writings

taken from her cell, tended to show that defendant could

communicate coherently and that she understood the nature of

the proceedings against her. There is no reasonable probability

that the jury would have reached a different conclusion had the

defense been permitted to offer further rebuttal evidence to

counter Dr. Rath’s claim that he accepted his court appointment

without breaching any ethical rules or creating a conflict of

interest. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)

16

On appeal, defendant for the first time suggests

Dr. Skidmore’s testimony on this topic was incomplete because

she “did not explain why a valid opinion about competence

requires a specific kind of interview, did not describe the

requirements for such a particularized interview, and did not

explain why Dr. Rath’s investigative interview did not meet the

professional standards for a competency interview.” Trial

counsel’s proffer did not include these specifics, and the trial

court was never made aware of the testimony defendant now

asserts was omitted from counsel’s proffer. (See People v. Vines

(2011) 51 Cal.4th 830, 868–869 [a reviewing court “may not

reverse a judgment for the erroneous exclusion of evidence

unless ‘[t]he substance, purpose, and relevance of the excluded

evidence was made known to the court by the questions asked,

an offer of proof, or by any other means.’ (Evid. Code, § 354,

subd. (a).)”].) To the extent defendant claims the trial court

erred by excluding the testimony, the issue is not properly before

us. (People v. Livaditis (1992) 2 Cal.4th 759, 780.)

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Assuming defendant has preserved a claim of federal

constitutional error, and the error implicated federal

constitutional rights, we conclude the error was harmless

beyond a reasonable doubt. (Chapman v. California (1967)

386 U.S. 18, 24.)

3. Exclusion of Portions of Defense Expert Testimony

During the defense case, the trial court excluded

Dr. Kania’s testimony about defendant’s delusions regarding

computers and Dr. Mills’s testimony about the Caldwell testing

service report on the results of the MMPI that Dr. Rath

administered to defendant on the day of her arrest. Defendant

offered these portions of the experts’ testimony to support their

opinions defendant was not competent to stand trial. The court

excluded the testimony because the defense did not timely

provide discovery of the evidence to the prosecutor. Defendant

asserts that the court erroneously applied the criminal discovery

statutes (Pen. Code, § 1054 et seq.) in excluding the evidence.

She contends that the provisions of the Civil Discovery Act of

1986 (Civil Discovery Act or Act)17 governed her competency

proceeding, and that there was no violation of those provisions.

Exclusion of the evidence, she asserts, was prejudicial error and

denied her state and federal constitutional rights to due process

17

Effective July 1, 2005, the Civil Discovery Act of 1986

(Code Civ. Proc., §§ 2016–2036) was repealed and reenacted

without substantive changes by the Civil Discovery Act of 2004

(id., § 2016.010 et seq.). (Stats. 2004, ch. 182, § 61; see also Cal.

Law Revision Com. com. to § 2016; Lee v. Superior Court (2009)

177 Cal.App.4th 1108, 1123, fn. 2.) Defendant refers to the

repealed provisions of the 1986 Act because they were in effect

at the time of her competency trial. For convenience, we, too,

refer to the repealed provisions of the 1986 Act effective at the

time of defendant’s competency trial.

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and a fair competency trial, to present evidence in support of her

case, and to contest the prosecution’s case. The claim lacks

merit.

a. Factual and procedural background

i. Dr. Kania

During cross-examination, the prosecutor questioned

Dr. Kania extensively regarding defendant’s delusions. On

redirect examination, trial counsel asked Dr. Kania about his

discussions with defendant regarding her delusional belief

concerning computers. Dr. Kania said defendant had stated

that computers were running the world and killing people, and

that she did not know whether the people she saw were alive or

were computers. The prosecutor objected to the line of

questioning on the ground it was beyond the scope of cross-

examination and it was “all new information” that had “never

been [included] anywhere in a report or anything.” The court

permitted trial counsel to reopen his examination on this topic,

and the prosecutor again objected he had not been provided

discovery. The court asked counsel whether discovery of this

particular delusion had been disclosed to the prosecutor. When

counsel responded that it did not appear in Dr. Kania’s report,

the court sustained the prosecution’s objection and struck the

portion of the expert’s testimony relating to defendant’s

computer delusions. The court admonished the jury to disregard

the testimony.

ii. Dr. Mills

During direct examination, Dr. Mills opined that

defendant was not malingering and suffered from a psychotic

disorder hindering her ability to work with an attorney. Trial

counsel then asked whether he had reviewed the results of an

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MMPI administered to defendant by the prosecution’s expert,

Dr. Rath. Outside the presence of the jury, the prosecutor

objected to Dr. Mills’s testimony on the ground he was unaware

that Dr. Mills had sent Dr. Rath’s raw data to the Caldwell

testing service for evaluation; Dr. Mills’s report made no

mention of this information or an opinion based on the test data.

The prosecutor stated he had received no discovery on this

particular issue.

The court allowed trial counsel to question Dr. Mills

outside the jury’s presence. Dr. Mills testified both he and

Dr. Kania sent Dr. Rath’s MMPI results to Caldwell and had

each received a report from Caldwell. Dr. Mills explained that,

while there were slight differences between the reports he and

Dr. Kania received, “for all practical purposes, they say the

same thing.” Counsel explained he sought admission of the

Caldwell report sent to Dr. Mills because Dr. Mills had relied on

the report in reaching his opinion. Counsel also asserted the

report sent to Dr. Mills was not “new material” because the

prosecutor “had the copy of the report from [Dr.] Kania.”

Finding that counsel had failed to provide discovery of

Dr. Mills’s testimony concerning the Caldwell report, the court

excluded the testimony.

b. Discussion

Defendant contends that the trial court erred in

sustaining the prosecutor’s objections and in excluding portions

of Dr. Kania’s and Dr. Mills’s testimony as sanctions for

discovery violations. Because a competency proceeding under

section 1368 is a special proceeding and not a criminal action

(People v. Hill (1967) 67 Cal.2d 105, 114, fn. 3), she reasons, civil

discovery rules apply rather than the criminal discovery statute.

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(See Code Civ. Proc., former § 2016, subd. (b)(1).) In support,

she relies on Baqleh v. Superior Court (2002) 100 Cal.App.4th

478, 490–491, decided after her competency trial, which held

that the Civil Discovery Act applies to competency hearings.

Defendant argues that because the prosecutor did not comply

with the civil rules for seeking discovery from her expert

witnesses, in that he did not make a demand for the production

“of all discoverable reports and writings” made by a designated

expert in the course of preparing his or her opinion (Code Civ.

Proc., former § 2034, subds. (a)(3), (g)), there was no basis for an

order excluding the evidence for noncompliance with the Act’s

requirements. Absent a discovery violation under the Act,

defendant contends, the court abused its discretion in excluding

Dr. Kania’s testimony about her computer-related delusions and

Dr. Mills’s testimony about the Caldwell report concerning the

MMPI test results Dr. Rath obtained.

The Attorney General, citing People v. Anderson (2001)

25 Cal.4th 543, 592, footnote 17, and People v. Williams (1997)

16 Cal.4th 153, 250, argues preliminarily that defendant’s claim

under the Act is forfeited on appeal because she did not rely on

the prosecutor’s alleged noncompliance with the Act in opposing

the objections at trial. Further, the Attorney General contends

the trial court properly relied on the criminal discovery statutes

in ruling on the prosecutor’s objection because no objection was

made concerning their applicability and the state of the law was

unsettled. (Cf. In re Scott (2003) 29 Cal.4th 783, 813–814

[although the criminal discovery statute did not apply in a

habeas corpus proceeding, the superior court judge logically

cited the statute in crafting an order for limited discovery].) The

Attorney General argues the court properly excluded the

evidence under Penal Code section 1054.5, subdivision (c),

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because the defense failed to disclose the “statements of experts

made in connection with the case” and the results of the mental

examination as required by Penal Code section 1054.3,

subdivision (a)(1), of the criminal discovery provisions. Finally,

the Attorney General contends that, even assuming error,

defendant suffered no prejudice because the excluded evidence

was cumulative.

We need not decide whether the Act or the criminal

discovery statutes applied to defendant’s competency trial.

Even assuming the court’s ruling excluding portions of

Dr. Kania’s and Dr. Mills’s testimony constituted an abuse of

discretion, the error was harmless under the “miscarriage of

justice” standard for state law error under Watson, supra, 46

Cal.2d at page 836.

The court’s ruling precluded the jury from considering

Dr. Kania’s testimony relating to defendant’s purported

delusional beliefs about computers and Dr. Mills’s explanation

of his reliance on the Caldwell analysis of Dr. Rath’s MMPI test

results. Defendant offered the evidence in support of each

expert’s opinion that defendant was incompetent to stand trial.

The evidence was, however, cumulative of other testimony

concerning defendant’s delusions. Dr. Kania himself testified

the primary symptom of defendant’s psychotic disorder was her

delusions. According to Dr. Kania, during his interviews with

defendant, she expressed delusional beliefs that her sister was

speaking a different language and influencing defendant’s

children in this language, that gas was being pumped into her

cell, and that people were trying to physically harm her and kill

her with the gas.

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Dr. Perrotti similarly testified defendant had expressed

delusional beliefs that she was being made the subject of a

medical experiment, that people wanted to harm her, and that

there was gas in her cell. In addition, Regena Acosta, who

befriended defendant in jail, testified that defendant believed

staff at the jail cafeteria put “stuff” in her food to make her sick.

Defendant’s family members also testified about her delusions,

including, for example, her belief that her sister Angela

Montenegro fed defendant’s children poisoned meat and that

Montenegro was a witch.

Defendant argues, however, that Dr. Perrotti’s testimony

concerning defendant’s delusion about gas being pumped into

her cell was not as persuasive as, and “did not compensate” for

the exclusion of, Dr. Kania’s testimony because Dr. Perrotti

observed the delusion only once. She also asserts that the other

evidence concerning her delusions came primarily from family

members “whose impartiality the prosecutor called into

question” and thus would not have been as persuasive as

Dr. Kania’s account of her computer delusion. The jury,

however, heard ample evidence of defendant’s delusional beliefs

from a variety of sources. We see no reasonable probability that

exclusion of Dr. Kania’s testimony about defendant’s particular

delusional beliefs regarding computers affected the outcome of

the proceedings. Defendant also fails to show that exclusion of

the evidence, even if erroneous under state law, rendered her

competency proceeding fundamentally unfair or otherwise

violated her due process rights.

Regarding the exclusion of Dr. Mills’s testimony, trial

counsel represented that the expert’s testimony would be

essentially the same as Dr. Kania’s on this point because each

expert had submitted the results of Dr. Rath’s MMPI to

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Caldwell for evaluation and each had received similar reports

from the testing service. During the hearing on the prosecutor’s

objection, Dr. Mills testified that the reports he and Dr. Kania

received from Caldwell “for all practical purposes, . . . say the

same thing.” At trial, Dr. Kania compared the Caldwell

interpretations of the results of the MMPI tests he and Dr. Rath

administered separately to defendant.18 Under these

circumstances, testimony by Dr. Mills similar to Dr. Kania’s

testimony on the same subject would have added little, if

anything, to the weight of the evidence of incompetence.

Defendant therefore was not prejudiced by exclusion of

Dr. Mills’s testimony concerning the Caldwell report (Watson,

supra, 46 Cal.2d at p. 836) and she does not otherwise show that

exclusion of the evidence resulted in a fundamentally unfair

competency proceeding or violated her right to due process.

4. Admission of Defendant’s Jailhouse Writings

Defendant contends that the trial court abused its

discretion by admitting certain jailhouse writings in the

prosecution’s surrebuttal case. The prosecution introduced the

writings, which had been seized during a search of defendant’s

jail cell the previous week, to refute defense investigator

Catherine Moreno’s rebuttal testimony that defendant could not

communicate coherently. Defendant argues that the writings

were improper surrebuttal because: (1) her inability to converse

coherently was at issue throughout the defense case-in-chief,

18

Among other things, Dr. Kania testified defendant’s

MMPI results on the test he administered did not indicate

malingering, but he acknowledged that the Caldwell report

indicated that the results obtained by Dr. Rath suggested

otherwise.

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meaning the prosecution should have offered the writings

during its case-in-chief; and (2) the prosecutor had indicated he

would not introduce the writings. Defendant contends that

admission of the writings deprived her of her state and federal

constitutional rights to due process and a fair competency trial.

We reject the argument.

a. Procedural background

During defendant’s rebuttal, defense paralegal Catherine

Moreno testified that she had visited with defendant about 10

times during the previous year in an effort to get her to

cooperate with the defense team. Moreno had four or five

conversations with defendant about witnesses in her case and

found her to be unhelpful, incoherent, and unable to stay on

topic.19 On cross-examination, Moreno testified she had never

read any of defendant’s writings.

Later the same day, and outside the presence of the jury,

the prosecutor informed the court that defendant’s jail cell had

been searched the previous week and writings had been seized,

copies of which had been provided to counsel. The prosecutor

stated: “I have been debating back and forth, and I am still not

convinced this second, but I think I would like to introduce the

writings that we found in her cell to the jury. [¶] The only

hesitancy I have is, the majority of it is in Spanish, and I don’t

know how the Court would feel about them getting a document

that somebody’s going to need to interpret.”

19

Trial counsel asked Moreno, “Have [your conversations

with defendant] been coherent on the part of [defendant]?” and

“have you observed whether or not [defendant]’s able to

structure coherent paragraphs?”

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The court responded: “[W]hen . . . there is something

written in a different language, it’s translated, and then the

translated version is what is utilized[.]” The court expressed its

reluctance “to send a document in Spanish into a jury. There

may be some people who are fluent in Spanish, there may be

some partially fluent. You don’t want to do that because you

don’t know what is going to be the result.” The prosecutor

responded, “All right. That’s fine. I will pass.” The court said,

“All right. Let’s bring our jurors in. I propose at this point we

will just end for the day and start the arguments on Monday.”

Trial was adjourned until Monday, November 13, 1995.

On that date, the last day of the competency trial, the prosecutor

revisited the issue of the writings seized from defendant’s jail

cell. He represented that the writings had been translated over

the weekend by a certified interpreter, and he offered the

translations, copies of which had been provided to counsel, to

demonstrate defendant’s ability to write and form paragraphs

and sentences. The court described one document as “three

pages of translation attached to a number of pages that are in

Spanish. The English portion here . . . [is] labeled, ‘Another 48-

Hour Appointment With Death,’ and, just perusing this in

general, it appears to be a story, and it appears to be a story that

closely parallels [defendant’s].” The court described the second

document as a one-page handwritten document in Spanish, the

English translation of which comprised defendant’s “thoughts

and/or prayers on behalf of the defendant dealing with this

case.”

Trial counsel objected to admission of the writings on the

grounds the evidence should have been presented in the

prosecution’s case-in-chief and because the prosecutor had

indicated in the prior proceeding he would not offer the evidence.

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The court ruled: “[W]e did not close [as] to evidence. I did

indicate we were going to leave it open for a ruling on People’s

10 [jail records]. During the trial the seizure of this

documentation was brought up. [The prosecutor] mentioned

last week it was in Spanish. I mentioned to him last week, ‘How

do you intend to introduce it, it is written in some Spanish, we

can’t have the jurors translate it, we will have to have a

translator translate the information.’ He did not indicate,

necessarily, he intended to introduce it, it was considered, it was

considered for purposes of introduction as evidence. [¶] I clearly

remember that because I remember [thinking], ‘Isn’t that

interesting, how are we going to go ahead with documents in

Spanish when, obviously, they haven’t been translated?’ So, you

are not going to be successful with an objection on those bases.”

When the court asked trial counsel whether he had any

objection to the contents of the writings, counsel repeated that

at the previous proceeding, the prosecutor had indicated he

would not offer the writings. The court stated: “I agree with

you, the last thing we had was [People’s Exhibit] 10; however,

we did not close [as] to evidence. It is not a surprise, we did

discuss the information. I indicated I am not going to keep it

out on that basis.” The court granted trial counsel 15 minutes

to review the pages and object to their content. Trial counsel

stated he wanted to consult with his experts “to see what, if any,

change this would make in their diagnosis [sic].” The following

colloquy then occurred:

“THE COURT: Wait a minute. [¶] The way the trial

proceeds, you go first, he goes next, you rebut, he rebuts. We

are at his rebuttal. Do you have some authority that says you

get a second rebuttal?

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“[TRIAL COUNSEL]: Well, I think in this instance, yes;

not case authority, but this goes well beyond simply being

rebuttal, this is much more in the nature of a case in chief. It

isn’t something that occurred over the weekend.

“THE COURT: You offered the testimony of Ms. Moreno

from your office, who testified on rebuttal that your client could

not form paragraphs, that she couldn’t put thoughts together

and hold them together. Just perusing this, it clearly seems to

rebut that presentation by you. [¶] Now, if you don’t have any

authority for a second rebuttal, that ends the issue here on that

basis.”

When trial counsel did not provide additional authorities,

the court indicated that it would recess to give counsel an

opportunity to read the translated writings and make any

further objections. After the recess, the court confirmed counsel

had read the writings and asked if he had anything further.

Counsel responded, “I have nothing additional.” The parties

stipulated that the writings were confiscated during a search of

defendant’s jail cell, and the court admitted the writings and

translations.

b. Discussion

Penal Code section 1369 specifies the order of proof in a

competency trial. First, defense counsel offers evidence in

support of the allegation of mental incompetence (id., subd.

(b)(1)); next, the prosecution presents its evidence on the issue

of the defendant’s present mental competence (id., subd. (c));

finally, “[e]ach party may offer rebutting testimony, unless the

court, for good reason in furtherance of justice, also permits

other evidence in support of the original contention” (id., subd.

(d)). Beyond these specifications, the order of proof is generally

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within the court’s discretion. (Evid. Code, § 320.) We review a

trial court’s ruling as to the order of proof for abuse of discretion.

(See People v. Tafoya (2007) 42 Cal.4th 147, 175.)

Defendant argues that evidence of her writings was not

admissible as surrebuttal evidence because it should have been

introduced during the prosecution’s case-in-chief, given that it

was relevant to the prosecution’s case and already in its

possession.20 We disagree.

During the defense case-in-chief, several witnesses,

including Dr. Perrotti, jail nurse Terrill, and Dr. Mills testified

that at times defendant did not express herself coherently.

During its case-in-chief, the prosecution had introduced

evidence to the opposite effect, including, for example,

Dr. Moral’s testimony that defendant could effectively

communicate about her family, medical, and mental health

history and “keep in touch with [him] verbally, talking back and

forth, without difficulty.” In rebuttal, to counter the

prosecution’s evidence that defendant could communicate

20

Defendant also argues that “the prosecutor did not

establish that the writings seized from [defendant]’s cell

reflected her present ability to communicate coherently” because

“[t]he documents were undated and could have been written at

any time during the year between [her] arrest and their

admission at trial.” At trial, however, defendant did not object

to the admissibility of the evidence on this ground, thereby

forfeiting this objection. In any event, the writings were

relevant to show defendant’s ability to communicate during the

period before trial, as to which defense paralegal Moreno had

also testified. Defendant’s concern that the writings may not

have been made during or immediately before trial goes to the

weight of the evidence, not its admissibility.

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effectively and without difficulty, defense paralegal Moreno

testified that defendant could not converse or structure

paragraphs coherently. The prosecutor offered defendant’s

writings in surrebuttal to refute Moreno’s rebuttal testimony.

This was not improper. (Pen. Code, § 1369, subd. (d).)

Defendant argues that the prosecution should have

offered the writings in its case-in-chief because this issue was

material to its case and already in its possession. But the same

is true of defense witness Moreno’s rebuttal testimony that

defendant could not communicate coherently; that testimony

was likewise material to defendant’s case-in-chief and already

in her possession, but not offered until after the defense and

prosecution had each presented its case-in-chief. Under the

circumstances, the trial court did not abuse its discretion in

permitting the prosecution to rebut Moreno’s testimony with

defendant’s writings.

Further, the record does not support defendant’s

contention that admission of the writings at the end of trial

improperly allowed the prosecution to place undue emphasis on

them. The writings were addressed only briefly during the

parties’ closing arguments. The prosecutor asked jurors to

consider all the evidence in deciding whether defendant was

competent, telling them, among other things: “[t]here is some

evidence you have not seen . . . the notes we had translated from

her jail cell, took [sic] about two weeks ago,” which they should

“[r]ead . . . [and] make [your] own decisions as to how well she

can think or not think, the cleverness, the detail, the subtleties.”

The prosecutor also argued that the writings demonstrated

defendant understood the nature of the legal proceedings

against her. Defense counsel countered that jurors should

accord the writings little weight because they were not

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introduced earlier or given to the doctors who interviewed

defendant. Nothing in the record suggests that the prosecution

placed undue emphasis on the late-introduced writings.

Finally, contrary to defendant’s assertion, the trial court’s

ruling did not allow the prosecutor to “sandbag” the defense.

The prosecution’s argument that the writings showed defendant

was able to communicate coherently in writing did not inject an

entirely new subject into the trial at the last moment. Defense

paralegal Moreno’s rebuttal testimony that defendant could not

communicate coherently related to events in the previous year.

Further, the writings were not available until about a week

before the prosecutor first indicated he might want to introduce

them. The trial court found there was no surprise in the

prosecution’s request to admit the writings because “we did

discuss the information.” The record supports this finding.

Trial counsel was on notice on November 9, 1995, that the

prosecutor might introduce the writings but that nothing

further would occur until they were translated.

Defendant makes much of the prosecutor’s “I will pass”

comment, arguing it revealed an intention to forgo admission of

the writings. The trial court evidently understood the

prosecutor’s comment differently. When trial counsel objected

on the same ground to the prosecutor’s efforts to introduce the

writings on Monday, November 13, the court recalled that the

prosecutor had been undecided; the court had mentally noted

the documents had not been translated, as would be necessary

before they could be introduced. Even assuming the court’s

recollection of the November 9 discussion was inaccurate,

counsel did nothing to correct the error. For these reasons, the

court’s finding that the prosecutor’s request to introduce the

exhibits was not a surprise was supported by substantial

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evidence. The court’s granting the prosecutor’s renewed request

to admit the writings on the following court day was not

fundamentally unfair.

5. Asserted Bias in Evidentiary Rulings at the

Competency Hearing

Defendant contends that the trial court’s evidentiary

rulings discussed above (pt. II.B.2.–.4., ante) demonstrated bias

against her and in favor of the prosecution and violated her state

and federal constitutional rights to due process. We reject the

argument.

Defendant first complains that the court excluded portions

of Dr. Kania’s and Dr. Mills’s testimony as a discovery sanction

(pt. II.B.3., ante), but permitted the prosecution to introduce the

writings seized from defendant’s jail cell over defense objections

the evidence was improper rebuttal evidence and untimely

(pt. II.B.4., ante). Second, defendant asserts that the court

treated the defense and the prosecutor differentially when it

excluded the rebuttal testimony of defense expert Sherry

Skidmore regarding professional standards governing forensic

psychologists in a competency evaluation (pt. II.B.2., ante), but

admitted the prosecution’s surrebuttal evidence of defendant’s

writings, despite the prosecutor’s assertedly misleading

representation he would not use the writings (pt. II.B.4., ante).

Defendant forfeited the claim of bias by failing to raise it

during the competency trial. (People v. Pearson (2013)

56 Cal.4th 393, 447; People v. Guerra (2006) 37 Cal.4th 1067,

1112 (Guerra).) The claim lacks merit in any event. “ ‘[A] trial

court’s numerous rulings against a party—even when

erroneous—do not establish a charge of judicial bias, especially

when they are subject to review.’ ” (People v. Fuiava (2012)

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53 Cal.4th 622, 732, quoting Guerra, at p. 1112; cf. Andrews v.

Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 795

[“There is no reason to explore the heart and mind of the

[adjudicator] when effective relief is readily available if the

reviewing court concludes a finding is unsupported by

substantial evidence. To hold otherwise would encourage a

losing party to raise the specter of bias indiscriminately[.]”].)

Defendant fails to demonstrate that the court engaged in any

judicial misconduct or exhibited bias, “let alone misconduct or

bias that was ‘so prejudicial that it deprived defendant of “ ‘a

fair, as opposed to a perfect, trial.’ ” ’ ” (People v. Avila (2009)

46 Cal.4th 680, 696.)

6. Rejection of Proposed Instruction

Defendant asked the court to instruct the jury that if she

were found incompetent, she would not be released from

custody. The proposed instruction, which was patterned after

CALJIC No. 4.01, stated in relevant part: “A verdict of

‘incompetent to stand trial’ does not mean the defendant will be

released from custody. Instead, she will remain in confinement

at a state hospital or another public or private institution for

treatment of the mentally disordered until the court determines

that she had [sic] regained her competence. [¶] Moreover, if and

when the defendant is found to be competent, the criminal

proceeding that was pending against her will be reinstituted. A

finding by you, the jury, that the defendant is not competent to

stand trial does not constitute the final disposition of the

criminal case against her. Rather it will have the effect of

postponing that case until she is deemed to be competent to

assist in her own defense.” The trial court refused to give the

instruction.

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On appeal, defendant contends that the court’s refusal to

instruct the jury on the consequences of a verdict of

incompetence was erroneous because there was a risk that the

jurors in her trial would assume she could be immediately

released from custody were she found incompetent, and

therefore might find her competent to prevent her return to the

community. Defendant relies for her argument on People v.

Moore (1985) 166 Cal.App.3d 540, in which the Court of Appeal

held a defendant in a sanity trial is entitled upon request to an

instruction advising the jury that a verdict of “not guilty by

reason of insanity” does not mean the defendant will be released

from custody. (Id. at p. 556.) The Moore court reasoned that

because some jurors may be unaware of the consequences of an

insanity verdict, the instruction is necessary to guard against

the possibility that the jurors would find the defendant sane

because they feared an insanity verdict would result in his

release from custody. (Ibid.) Defendant argues that this case

involved a similar risk that jurors unfamiliar with competency

proceedings might have found her competent simply to prevent

her release from custody and the indefinite abeyance of her

criminal case. Defendant further contends that she was entitled

to the proposed instruction under the due process clause of the

Fourteenth Amendment. In support of the argument, defendant

cites the high court’s decision in Simmons v. South Carolina

(1994) 512 U.S. 154, 168–169 (plur. opn. of Blackmun, J.) and

its progeny, holding that, where future dangerousness is at

issue, a capital defendant has a due process right to inform the

jury that he or she will be ineligible for parole if sentenced to life

imprisonment.

We have previously rejected arguments similar to

defendant’s, and do so again here. In People v. Marks (2003)

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31 Cal.4th 197, for example, the defendant sought a similar

instruction stating, in relevant part: “ ‘If the defendant is found

mentally incompetent to stand trial, criminal proceedings shall

remain suspended until such time as he becomes mentally

competent. In the meantime, the court will order the defendant

to be confined at a state hospital for the care and treatment of

the mentally disordered where he will participate in a program

designed to promote the defendant’s speedy restoration to

mental competence.’ ” (Id. at p. 221.) We upheld the trial court’s

refusal to give the instruction, explaining the instruction was

flawed because it “characterized defendant’s return to

competence and the eventual resumption of criminal

proceedings as inevitable,” even though “there [is] no guarantee

of a speedy recovery.” (Id. at p. 222.) We “declined to extend

Moore beyond its original context,” i.e., sanity trials. (Ibid.)

Similarly, in People v. Dunkle (2005) 36 Cal.4th 861

(Dunkle), the defendant argued the trial court erred in failing to

instruct the jury on its own motion regarding the consequences

of a verdict of incompetence, also analogizing his case to Moore.

We again “declined to apply Moore outside its original context.”

(Id. at p. 897.) We reasoned that “[b]ecause the outcome of any

future efforts at restoring a defendant to competency is

uncertain at the time when the jury must make its decision on

competency, an instruction patterned after Moore and CALJIC

No. 4.01 is necessarily speculative.” (Ibid.)

Here, defendant’s proposed instruction on the

consequences of an incompetency verdict suffered from the same

basic flaw. It speculates as to defendant’s return to competence

and resumption of criminal proceedings, matters that are

inherently uncertain when the jury is determining competency.

(Cf. Jackson v. Superior Court (2017) 4 Cal.5th 96, 100–102

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[describing range of possible outcomes following a

determination of incompetence].) The court did not err in

refusing defendant’s proposed instruction.

7. Cumulative Error at Competency Trial

Defendant contends her entire death judgment should be

reversed based on the cumulative effect of the prejudice

resulting from all of the asserted errors in her competency trial.

We have found no prejudicial error. Where we have assumed

the existence of error in the exclusion of portions of the

Skidmore, Mills, and Kania testimony, we have concluded any

error was harmless. Considered in combination, these assumed

errors do not establish that defendant was denied a fair

competency proceeding.

8. Denial of Request for a Second Competency Trial

Defendant contends that the court erred in denying her

request for a second competency hearing under section 1368

based on her assertion that she was increasingly unable to

understand and respond to the legal proceedings and to

cooperate with trial counsel in preparing her defense. She also

contends that the asserted error violated her state and federal

constitutional rights to due process and a fair trial. We find no

error.

a. Factual and procedural background

As discussed above, on November 13, 1995, the jury

returned its verdict finding defendant competent to stand trial

in her criminal proceedings. On January 3, 1996, during a

pretrial in camera hearing held outside the presence of the

prosecutor, the court denied defendant’s motion for substitution

of defense counsel under People v. Marsden (1970) 2 Cal.3d 118.

In the course of the proceeding, trial counsel declared a doubt

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about defendant’s competence and requested a second

competency hearing under section 1368. Although counsel

offered no new information in support of his request, the court

suspended the criminal proceedings and appointed two

psychiatrists to evaluate defendant’s competence.

On January 5, 1996, during proceedings at which both

parties were present, the court vacated its order appointing

psychiatrists pursuant to section 1368. It explained: “I was

somewhat taken aback by [trial counsel]’s further declaration as

to the defendant’s competency and forgot there was no District

Attorney present, because we had a [Marsden] hearing prior to

that, and I appointed doctors. But on reconsideration I think we

need to have a little further information and showing before that

can be done again.” The court informed counsel it was relying

on our decision in People v. Medina (1995) 11 Cal.4th 694

(Medina II), for its authority to reconsider its prior order

appointing the psychiatrists. The court set the matter for a

hearing to determine under Medina II whether there had been

a “substantial change of circumstances” since the jury returned

its verdict finding defendant was competent to stand trial.

At a hearing on January 19, 1996, trial counsel renewed

his request for appointment of mental health experts under

section 1368 to evaluate defendant’s competence to stand trial.

Counsel explained that his motion was based solely on new

factual developments and not a new diagnosis. During the two

conferences he had had with defendant since the jury had found

her competent on November 13, 1995, counsel said, she spoke in

a “rambling fashion” about her dissatisfaction with his

representation. Although counsel tried to discuss the nature of

her dissatisfaction and inform her of her options, she appeared

to not understand his explanations. Counsel asserted that

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defendant spoke no more than 10 words during the Marsden

hearing21 and that her conduct demonstrated a “deepened

inability” to understand and respond to the legal proceedings

and cooperate with counsel. In addition, after counsel informed

her the District Attorney had filed a notice of intent to seek the

death penalty, he questioned her to determine whether she

understood the impact of the decision; she responded “with a

blank stare.”

The prosecutor argued that defendant’s incoherence and

inability to understand the issues had been litigated at the

competency trial, and counsel had presented no grounds for a

new referral under section 1368. Counsel acknowledged that

the issues presented by his renewed motion were not different

from those litigated at defendant’s first competency trial, i.e.,

her confusion and inability to understand the legal proceedings

and to cooperate with counsel, but he maintained defendant had

become “more disorganized, incoherent, and uncooperative.”

The court denied the motion, finding counsel’s showing

insufficient to distinguish defendant’s present condition from

her condition before the competency trial.

b. Discussion

“ ‘Once a defendant has been found competent to stand

trial, a second competency hearing is required only if the

21

Actually, defendant spoke somewhat more than 10 words

at the Marsden hearing. When defendant complained about

counsel’s representation, the court asked her to give examples.

Defendant explained, “Okay. Sometimes I asked him, like, for

small things that he is able to do. And he just cannot do them.

Sometimes I ask him questions, and he never has an answer for

them, you know. And the way he has handled the case since the

beginning, I just don’t like it. I don’t agree with it.”

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evidence discloses a substantial change of circumstances or new

evidence is presented casting serious doubt on the validity of the

prior finding of the defendant’s competence.’ ” (People v.

Leonard (2007) 40 Cal.4th 1370, 1415, quoting Medina II,

supra, 11 Cal.4th at p. 734; see also People v. Jones (1991)

53 Cal.3d 1115, 1153.) “More is required than just bizarre

actions or statements by the defendant to raise a doubt of

competency” (People v. Marshall (1997) 15 Cal.4th 1, 33), or

“counsel’s unparticularized assertion that defendant’s condition

had deteriorated, with no explanation of how it had done so”

(Dunkle, supra, 36 Cal.4th at p. 904).

We conclude the court did not err in denying defendant’s

motion for a new competency evaluation. Trial counsel offered

only unparticularized assertions and brief descriptions of

isolated incidents that, in his view, reflected a “deepening” of

defendant’s inability to understand the legal proceedings and

cooperate with counsel. Defendant’s behavior may, however,

have simply been a display of her unwillingness to cooperate

with counsel. (See, e.g., Medina II, supra, 11 Cal.4th at p. 735

[defendant’s “cursing and disruptive actions displayed an

unwillingness to assist in his defense, but did not necessarily

bear on his competence to do so, or reflect a substantial change

of circumstances or new evidence casting serious doubt on the

validity of the prior finding of the defendant’s competence”].) In

the absence of a more specific offer of proof, the trial court did

not err in concluding that counsel had not presented evidence of

changed circumstances or new evidence casting a serious doubt

on the prior finding that defendant was competent to stand trial.

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III. CRIMINAL PROCEEDINGS

A. Jury Selection Issues

Defendant contends that the trial court committed

reversible error when it excused for cause two prospective

jurors, B.R. and F.P., based solely on their written questionnaire

answers concerning their personal views on the death penalty,

in violation of her rights under the Sixth, Eighth, and

Fourteenth Amendments to the United States Constitution.

(See Wainwright v. Witt (1985) 469 U.S. 412; People v. Stewart

(2004) 33 Cal.4th 425, 440–455 (Stewart).) In addition,

defendant contends that the court erroneously excused for cause

Prospective Juror R.J. after voir dire based on his death penalty

views. We conclude that the court erred in excusing Prospective

Juror B.R. for cause based solely on her questionnaire

responses. Reversal of defendant’s penalty judgment is

mandated under United States Supreme Court precedent.

(Gray v. Mississippi (1987) 481 U.S. 648, 659–667 (Gray).) In

light of this conclusion, we need not decide whether the trial

court erred in dismissing any of the remaining prospective

jurors based on their death penalty views.

1. The Jury Selection Procedure and Written

Questionnaire

Four panels of prospective jurors were called for selection

of the jury in this case. After each panel was sworn, the court

made its prefatory remarks and then screened prospective

jurors for hardship excusals, almost all of which were resolved

by stipulations of the parties. The remaining prospective jurors

were instructed to complete the jury questionnaire in the jury

assembly room and to return the following Monday.

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The 32-page questionnaire contained 81 questions and

included a section concerning the respondents’ “Opinions about

the Death Penalty.” The introduction to this section explained

that if the jury found defendant to be guilty and a special

circumstance true, a penalty trial would be held; the jury would

choose a penalty of life without the possibility of parole or death;

and in making the penalty choice, the jury would consider

factors in aggravation and mitigation.

On July 6, 1998, outside the presence of the prospective

jurors, the court informed counsel that 122 prospective jurors

with completed questionnaires were expected to arrive that

morning for jury selection. The court had “identified

approximately 29 potential jurors from the reading of the

questionnaires, which in my mind, if their answers were

consistent in open court with their answers in the questionnaire,

I would in all probability excuse them for cause.” The court

asked the parties to consider excusing the 29 prospective jurors

by stipulation because the courtroom could seat a maximum of

only 92 individuals. In the alternative, the court proposed

excusing the last 30 individuals from the random list of

prospective jurors. The court expressed hope that “[we] can

work through the obvious individuals to stipulate for cause.”

The court and counsel thereafter discussed the

qualifications of the 29 prospective jurors based solely on their

written questionnaire responses, beginning with Prospective

Juror B.R. When the court asked the parties for a response, trial

counsel stated, “[W]e’ll submit it. We can’t stipulate to them

obviously, Your Honor, but we know what the Court’s concerns

are.” The prosecutor noted that B.R. was on his list of challenges

for cause. Without further discussion, the court ruled, “Based

on the answers that the potential juror would not vote for death,

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and at this time [B.R.] would be excused for cause.” No other

cause for her excusal was identified.

Prospective Juror F.P. was another of the 29 prospective

jurors the court identified as probably disqualified based on her

written questionnaire responses alone. After the court and

counsel discussed her responses, the prosecutor challenged F.P.

for cause under Witt. The court granted the challenge.

The court subsequently conducted voir dire of the

remaining prospective jurors in groups of 18. Each party was

permitted 30 minutes to ask follow-up questions.

During the voir dire process, the court excused Prospective

Juror R.J. for cause under Witt. The court did not permit

counsel to attempt to rehabilitate any of the prospective jurors

the court had determined to be disqualified as “substantially

impaired.” The parties exercised their for-cause and peremptory

challenges, and the jury was sworn.

2. Discussion

“Under decisions of the United States Supreme Court,

prospective jurors who express personal opposition to the death

penalty are not automatically subject to excusal for cause as

long as ‘they state clearly that they are willing to temporarily

set aside their own beliefs in deference to the rule of law.’

(Lockhart v. McCree (1986) 476 U.S. 162, 176; see Witherspoon

v. Illinois (1968) 391 U.S. 510, 522.) To determine if a

prospective juror is excusable for cause without compromising a

defendant’s constitutional rights, we inquire whether the

prospective juror’s views on the death penalty ‘would “prevent

or substantially impair the performance” ’ of the juror’s duties

in accordance with the court’s instructions and his or her oath.”

(People v. Riccardi (2012) 54 Cal.4th 758, 778 (Riccardi); see

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People v. Avila (2006) 38 Cal.4th 491, 529 (Avila); Stewart,

supra, 33 Cal.4th at pp. 446–447.)

“Before granting a challenge for cause, the ‘court must

have sufficient information regarding the prospective juror’s

state of mind to permit a reliable determination as to whether

the juror’s views would “ ‘prevent or substantially impair’ ” ’

performance as a capital juror. [Citation.] Trial courts must

therefore make ‘a conscientious attempt to determine a

prospective juror’s views regarding capital punishment to

ensure that any juror excused from jury service meets the

constitutional standard.’ ” (People v. Leon (2015)

61 Cal.4th 569, 592; accord, Covarrubias, supra, 1 Cal.5th at

p. 863.)

On appeal, we independently review a trial court’s

dismissal of a prospective juror under Witt based solely on his or

her written questionnaire responses. (People v. Zaragoza (2016)

1 Cal.5th 21, 37, citing Riccardi, supra, 54 Cal.4th at p. 779.)

“[A] prospective juror may be discharged for cause solely on the

basis of written questionnaire responses only if it is ‘clear’ from

those responses that the juror is unable or unwilling to

temporarily set aside the juror’s beliefs and follow the law.

([Riccardi], supra, 54 Cal.4th at p. 781, fn. 11; [Avila], supra,

38 Cal.4th at p. 531; see also People v. McKinnon (2011)

52 Cal.4th 610, 647–648.) Where a prospective juror’s written

responses are ambiguous with respect to the individual’s

willingness or ability to follow the court’s instructions in a

potential penalty phase, the record does not support a challenge

for cause. (Stewart, at pp. 448–449.)” (Zaragoza, supra, at

pp. 38–39; see Covarrubias, supra, 1 Cal.5th at p. 863.)

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Preliminarily, the Attorney General argues defendant

forfeited her claim by failing to object to the dismissal of

Prospective Juror B.R. or request voir dire. At the time of

defendant’s trial, however, there was no requirement of a

contemporaneous objection or statement of grounds to preserve

a claim of Witherspoon/Witt error in the excusal of a prospective

juror.22 (McKinnon, supra, 52 Cal.4th at p. 637.) Nor did

counsel forfeit the issue by submitting the question to the trial

court. (Ibid.; People v. Lynch (2010) 50 Cal.4th 693, 733.) We

therefore proceed to the merits of defendant’s claim.

In her questionnaire, Prospective Juror B.R. stated that

she was a widowed 70-year-old retired payroll clerk and had

been a resident of the city of Riverside for 42 years. B.R.

estimated that she had worked on the questionnaire for an hour.

Of the 81 questions contained in the questionnaire, B.R. left 36

questions unanswered.

In response to Question 15, Prospective Juror B.R.

identified herself as a religious person and indicated that her

religious beliefs would not prohibit or make it difficult for her to

sit as a juror. The section entitled “The Charges Here” informed

prospective jurors that defendant was charged with the murders

of her three minor children by stabbing and with the special

22

In People v. McKinnon, supra, 52 Cal.4th at page 643

(McKinnon), we overruled People v. Velasquez (1980)

26 Cal.3d 425, “to the extent it articulates a no-forfeiture rule

with respect to Witherspoon/Witt excusal error” and

prospectively held that in order to preserve a claim of such error

for appeal, counsel—or defendant if proceeding pro se—“must

make either a timely objection, or the functional equivalent of

an objection, such as a statement of opposition or disagreement,

to the excusal stating specific grounds under Witherspoon/Witt.”

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circumstance of multiple murder. In response to Question 37 in

that section, B.R. indicated by circling “yes” that she had a

“religious or moral feeling that would make it difficult for her to

sit in judgment of another person.” B.R. did not have any

feelings, positive or negative, about the criminal justice system.

The questions Prospective Juror B.R. left unanswered

included the following: “Would you automatically reject the

testimony of a witness who admitted that he/she had used drugs

or alcohol?”; “What is your opinion, if any, of psychologists or

psychiatrists who testify in criminal cases?”; “Do you have the

opinion that any mother who kills her children must be ‘crazy’?”;

“Do you have any feeling about the nature of the charges in this

case that would make it difficult or impossible for you to be fair

or impartial?”; “Would you be reluctant to serve on a jury on a

crime involving acts of violence and where graphic photographs

of the victim will be in evidence?”; “Do you believe the criminal

justice system makes it too hard for the police and prosecutors

to convict people accused of crimes?”; and “If the judge gives you

an instruction on the law that differs from your beliefs or

opinions, will you follow the law at [sic] the judge instructs you?”

She did not answer questions about her ability to follow

instructions concerning the prosecution’s burden of proof. She

also failed to answer the following questions: “Would you

believe or disbelieve the testimony of a law enforcement officer

simply because he/she is a law enforcement officer?”; “Would you

automatically believe everything an expert said merely because

the person is called an expert?”; and “What is it about yourself

that makes you feel you can be a fair and impartial juror?”

In the “Trial Issues” section of the questionnaire,

Prospective Juror B.R. answered the following questions

“unsure” instead of “yes” or “no”: “Do you feel you can give the

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defendant and the People a fair trial?”; “Can you objectively view

and consider graphic photos of dead children?”; “[C]ould you

listen to your fellow jurors and receive from them the benefit of

their thinking concerning the evidence in this case?”; “If during

jury deliberations . . . you become convinced that you are wrong,

could you reconsider your position?”; and “Would you change

your position merely because the other jurors disagree with

you?”

Questions 68 through 73 and 76 through 78 of the

questionnaire concerned a prospective juror’s death penalty

views and duties as a capital juror. In response to Question 68,

which asked respondents to describe their “general feelings

about the death penalty,” B.R. wrote: “I wouldn’t want to make

that decision.” In part “a” of Question 68, which asked

prospective jurors to rank their feelings about the death penalty

on a scale of 1 to 10, with 1 indicating “strongly against the death

penalty” and 10 being “strongly in favor of the death penalty,”

B.R. ranked herself a “1.”

In part “c” of Question 68, Prospective Juror B.R. circled

“Yes” in response to the question, “If you are against the death

penalty, would your opinion make it difficult for you to vote for

the death penalty in this case, regardless of what the evidence

was?” In Part “e” of the same question, B.R. indicated that she

had never held a different opinion about the death penalty. In

response to Question 73, “Do you have an opinion as to whether

you think death or life in prison is the more severe

punishment?,” B.R. answered, “No.” B.R. left unanswered the

remaining death penalty questions. Among them was Question

70, which asked, in essence, whether, no matter what the

evidence was, the prospective juror would “ALWAYS” vote for

the death penalty (pt. (a)) or would “ALWAYS” vote for life

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without possibility of parole (pt. (b)), or would consider all of the

evidence and decide the appropriate penalty according to the

law (pt. (c)).

Based on our independent review of the record,

Prospective Juror B.R.’s written questionnaire responses, taken

together, did not clearly demonstrate that her death penalty

views would prevent or substantially impair her ability to serve

as a capital juror in accordance with the trial court’s instructions

and her juror’s oath. (McKinnon, supra, 52 Cal.4th at p. 647;

Avila, supra, 38 Cal.4th at p. 533.) Crucially, B.R. indicated she

“wouldn’t want” to make a decision involving the death penalty,

not that she could not or would not make such a decision if

instructed to do so. B.R. also stated that her strongly held views

against the death penalty would make it difficult to vote for the

death penalty, but again, not that she could not or would not do

so. Our cases make clear that “mere difficulty in imposing the

death penalty does not, per se, prevent or substantially impair

the performance of a juror’s duties.” (Avila, supra, at p. 530.)

“A juror might find it very difficult to vote to impose the death

penalty, and yet such a juror’s performance still would not be

substantially impaired under Witt, unless he or she were

unwilling or unable to follow the trial court’s instructions by

weighing the aggravating and mitigating circumstances of the

case and determining whether death is the appropriate penalty

under the law.” (Stewart, supra, 33 Cal.4th at p. 447.)

It is possible that Prospective Juror B.R.’s views might

have been clearly revealed by her response to Question 70,

which sought to determine whether prospective jurors would

“always” vote for life imprisonment versus the death penalty.

We have previously upheld the dismissal of jurors based on their

written responses to questions that clearly ask whether the

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“juror would automatically vote one way or the other

irrespective of the evidence.” (People v. Wilson (2008)

44 Cal.4th 758, 787 (Wilson) [questionnaire asking jurors

whether, “ ‘[n]o matter what the evidence was,’ would they

‘ALWAYS vote for the death penalty’ or ‘for life without

possibility of parole.’ ”]; see id. at pp. 788–789.) But B.R. did not

respond to Question 70, and the remainder of her responses

provided no sufficient basis to conclude that B.R. was “not

willing or able to set aside . . . her personal views and follow the

law.” (Id. at p. 787.)

The Attorney General argues that even if counsel’s failure

to object to B.R.’s excusal did not result in forfeiture of the claim,

counsel’s decision to submit the matter provided support for the

trial court’s assessment that B.R. was excusable for cause under

Witt. The Attorney General relies on People v. Schmeck (2005)

37 Cal.4th 240, 262 (Schmeck), in which we said trial counsel’s

submission of the question of a prospective juror’s qualification

to serve in a capital trial, like a failure to object, “ ‘does suggest

counsel concurred in the assessment that the juror was

excusable.’ ” (Ibid., quoting People v. Cleveland (2004)

32 Cal.4th 704, 734–735.)

This case is distinguishable from Schmeck. In Schmeck,

substantial evidence supported the trial court’s finding, based

on their voir dire responses and demeanor, that the prospective

jurors in question were disqualified under Witt. “All four

prospective jurors indicated at various points during their voir

dire that, in light of their views concerning the death penalty . . .

they were unable to state that they could consider imposing the

death penalty in this case as a reasonable possibility.”

(Schmeck, supra, 37 Cal.4th at p. 262.) Here, by contrast, the

court excused Prospective Juror B.R. based solely on her

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questionnaire responses, finding she “would not vote for death.”

As explained above, however, the evidence before the court was

insufficient to establish that B.R.’s death penalty views would

prevent or substantially impair her performance as a capital

juror. (McKinnon, supra, 52 Cal.4th at p. 643; Avila, supra,

38 Cal.4th at p. 531.) Moreover, during this portion of the jury

selection process, the court did not permit the parties to attempt

to rehabilitate any of the prospective jurors whom it had

identified as excusable for cause. Under the circumstances, trial

counsel’s decision to submit B.R.’s excusal does not alter our

conclusion that the excusal was improper.

This case is likewise distinguishable from McKinnon, in

which trial counsel not only submitted the matter of prospective

jurors’ excusal for cause under Witherspoon/Witt based solely

on their written questionnaire responses, but also declined the

court’s offer to conduct voir dire. (McKinnon, supra, 52 Cal.4th

at p. 650.) In McKinnon, as in Schmeck, we reasoned that

counsel’s conduct “signaled concurrence” in the trial court’s

ruling; this concurrence, we said, “weigh[ed] heavily, along with

the substance of [the] questionnaire responses, in favor of a

determination on the merits that the excusal was proper.”

(McKinnon, at p. 650; see id. at p. 651.) In this case, as noted,

trial counsel was not given the option of conducting voir dire.

And more importantly, the substance of B.R.’s questionnaire

responses—or nonresponses, as the case may be—did not clearly

signal that B.R. held views about the death penalty that

rendered her “unable to deliberate fairly on the issue of penalty.”

(Id. at p. 649.) Under the circumstances, even if we were to

assume that counsel’s submission of B.R.’s excusal indicated

acquiescence in the court’s ruling, it would not “weigh heavily”

in favor of a finding that the ruling was proper. The trial court

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erred in concluding B.R. was disqualified based solely on her

written questionnaire responses; further inquiry was necessary

to determine whether her death penalty views actually

warranted excusal under Witherspoon/Witt.

The Attorney General raises an alternative ground for

affirming the excusal: that B.R. failed to obey her juror oath and

respond to all the questions in the questionnaire. But even

assuming that we may affirm B.R.’s dismissal on a ground

entirely different from the ground the trial court cited, we reject

the Attorney General’s argument. The clerk administered the

following oath to each panel of prospective jurors: “You and each

of you do understand and agree that you will accurately and

truthfully answer under penalty of perjury all questions

propounded to you concerning your qualifications and

competency to serve as a trial juror in the matter now pending

before this Court.” In addition, after each panel was sworn, the

trial court made its prefatory remarks and advised the

prospective jurors of the importance of the juror questionnaire.

It stated first the use of the questionnaire would “cut down the

jury selection in this case by a number of days.” It then informed

the prospective jurors that “the attorneys will be reading the

questionnaires in great depth because they will be utilizing that

information to help them select the jury in this case.” The

“Instructions for Juror Questionnaire,” appearing on the second

page of the questionnaire, largely repeated the trial court’s

advisement of the questionnaire’s dual purpose and specifically

encouraged prospective jurors to provide complete answers.

Critically, however, the written questionnaire instructions

included the following additional advisement, which was not

provided orally by the trial court: “If you cannot answer a

question, please leave the response area blank. During the

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questioning, you will be given an opportunity to explain or

expand any answers if necessary.”

The record does not reveal why Prospective Juror B.R. did

not answer a substantial number of the questions on her

questionnaire. She may have had difficulty answering the

questions and reasonably relied on the above advisement on the

questionnaire, with the expectation that when she and the other

prospective jurors returned to court, the judge and attorneys

would question her and give her an opportunity to explain her

blank responses. Absent an explanation from B.R. as to why she

failed to complete all of the questions, we cannot conclude she

failed to obey her oath. The unanswered questions provided a

reason for the trial court to voir dire B.R., but not justification

to excuse her for cause. (See, e.g., Wilson, supra, 44 Cal.4th at

p. 789 [a trial court should personally examine a prospective

juror when it has “reason to suspect a prospective juror is a poor

reader or may simply have misunderstood the questionnaire”].)

Having found error, we turn to the question of remedy.

“The general rule is that, absent a showing of prejudice, an

erroneous excusal of a prospective juror for cause does not

mandate the reversal of judgment. This rule is based on the

principle that a ‘[d]efendant has a right to jurors who are

qualified and competent, not to any particular juror.’ [Citation.]

But . . . under existing United States Supreme Court precedent,

the erroneous excusal of a prospective juror for cause based on

that person’s views concerning the death penalty automatically

compels the reversal of the penalty phase without any inquiry

as to whether the error actually prejudiced defendant’s penalty

determination. (Gray, supra, 481 U.S. at pp. 659–667 (opn. of

the court); id., at pp. 667–668 (plur. opn. of Blackmun, J.); id.,

at p. 672 (conc. opn. of Powell, J.).)” (Riccardi, supra,

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54 Cal.4th at p. 783; see People v. Woodruff (2018) 5 Cal.5th 697,

745.) In accordance with this precedent, we must reverse the

penalty judgment.23

B. Guilt Phase Issues

1. Defendant’s Motion for Self-Representation

Defendant argues that the trial court committed

reversible error in denying her request for self-representation

under Faretta v. California (1975) 422 U.S. 806. The claim is

without merit.

a. Factual and procedural background

On Monday, July 20, 1998, during the morning session on

the second day of the prosecution’s case-in-chief, the prosecutor

played for the jury a portion of the audiotape of defendant’s

interview with San Jacinto Police Detective Frederick

Rodriguez conducted on the day of the homicides. Sometime

after the morning recess, at lead defense counsel Jay

Grossman’s request, the trial court conducted an in camera

hearing with only Grossman and cocounsel David Macher

present. Grossman informed the court that defendant was

dissatisfied with counsel’s representation and that he had

23

Defendant also contends that the court failed to make a

case-specific determination concerning whether group voir dire

was practicable, in violation of Code of Civil Procedure section

223, and failed to conduct a voir dire adequate to identify

prospective jurors who could not be impartial. As a result,

defendant contends, she was denied a fair and impartial jury at

the penalty phase in violation of article I, section 16 of the state

Constitution and the Sixth and Fourteenth Amendments to the

federal Constitution. Because we conclude the penalty

judgment must be reversed due to Witherspoon/Witt error, we

need not address this contention.

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explained her options, one of which was to request self-

representation under Faretta v. California, supra, 422 U.S. 806

(Faretta). Grossman had mentioned the option of self-

representation because “the things that she’s asking us to do,

while not unethical, are simply not in her best interest.”

Defendant told counsel that she “wanted to represent herself

and wanted to talk with the Court.” Grossman added, “this is a

continuing problem [that is] exacerbated every day when there’s

more testimony.” Cocounsel Macher stated he would object to a

Faretta motion as untimely and not in defendant’s best interest.

The court indicated it would allow defendant to be heard on her

request later that day. After the hearing concluded, the

remainder of the audiotape of defendant’s police interview was

played to the jury.

During the lunch recess, the court held a hearing under

Marsden and Faretta. Lead counsel Grossman informed the

court that, while the audiotape was being played before the jury

that morning, defendant mentioned for the first time that she

believed the voice on the audiotape of her police interview was

not hers. Grossman and cocounsel Macher later met with

defendant in a holding cell. According to Grossman, defendant

told them that the audiotape was a fraud, that the prosecution

was trying to frame her for the murders, and that she expected

her attorneys to call witnesses to prove the audiotape was a

fraud.

Grossman informed the court: “I have no such witnesses

and there’s never been a suggestion that that is not her voice on

the tape. And we tried to explain that to [defendant]. She then

said that if we wouldn’t do it, basically it was her intention to do

it by way of either testifying or managing the case on her own.”

Grossman continued: “[W]e have no witnesses who can contest

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the validity of that tape. I don’t know who to call, no provisions

have been made to do that because, frankly, there was never any

expectation that this wasn’t her voice on the tape. [¶] And I

tried to talk to [defendant] about . . . recognizing her voice. I

know I’m not a witness, but the information that was . . . being

conveyed in that tape is of the nature that I told her I would find

hard to believe a jury would believe the San Jacinto Police were

getting somebody to invent the names of the children, the ages,

the history with her husband, things like that. [¶] [Defendant]’s

very adamant that it’s a fraud and insists that we go forward in

some way to prove that it’s a fraud, and . . . this is another

instance, in her own mind, that indicates to her that counsel is

not making an effort to try to protect her legal rights and

advance her interests in this case.”

Grossman explained to the court it would be “the worst

possible thing” for the defense to present evidence that the

prosecution framed defendant for the murders and to also argue

“the DNA and other things have all been fabricated.” According

to counsel, as of that morning, defendant was “adamant” that

“she wanted to at least explore this issue with the Court, and

again indicate her dissatisfaction to the Court.”

Defendant told the court that she had never heard the

audiotape of her interview with Detective Rodriguez before it

was played for the jury. Lead counsel Grossman informed the

court: “We have dealt with the tape issue, at least the statement

issues, before, although I don’t recall ever playing portions of the

tape to her in . . . jail. We did have the transcript, but it never

was brought to my attention that this was a fabrication.”

The court asked defendant whether she was requesting to

represent herself, and she answered, “Yes.” The court noted

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that lead counsel Grossman had been assigned to defendant’s

case for two years, and the prosecution was “halfway” through

the presentation of evidence in its case-in-chief. The court also

stated that earlier that morning, it had overheard defendant

yelling at both her attorneys in a “very raised, angry voice” in a

holding cell directly adjacent to the courtroom, and asked

Grossman, “Is that a very fair characterization?” Grossman

answered, “Generally, yes.”

The court asked Grossman what his “take on this” was,

and counsel said he believed defendant’s concern “is not one of

delay[;] her concern in her own mind is presenting what she

considers the true facts to be to this jury.” Grossman stated that

defendant had expressed no desire for a continuance, but

essentially insisted that he call witnesses he did not have in

order to dispute the accuracy of the audiotape of defendant’s

police interview. Grossman expressed frustration “that we are

almost at total loggerheads, ‘we’ meaning [defense counsel],

with [defendant] . . . . And there’s a widening gulf between what

she wants and what we can ethically do and what we think is in

her best interests in terms of possible penalty in this case.”

Cocounsel Macher added that after working on

defendant’s case for two years, he considered her defense

theories “implausible,” “fantasy,” and “just not based in reality.”

Macher stated he could not present defendant’s theories in good

faith because her defense “would be a disaster for both guilt and

penalty, and we can’t do it.” The following colloquy then

occurred:

“THE COURT: So we have a clear record, in your opinion

the defense that she wants presented, which she would like to

present on her own behalf, is one, in part, based upon fantasy?

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“MR. MACHER: Your honor, from what we’ve been able

to see in two years of working on the case, I would agree that it’s

just not based in reality.

“THE COURT: All right. [Defendant], are you telling me

you want to represent yourself today; is that what you’re saying?

“[DEFENDANT]: Yes, Your Honor.

“THE COURT: And how do you plan on doing that?

“[DEFENDANT]: As I have already seen how Mr. Macher

conducted the cross-examination of Officer Blane Dillon, and

there’s questions that could have been asked direct to him in

regards to the timing, that he made like from San Jacinto Police

Station to the apartments. [¶] And there’s a couple questions

that we already have reports on that we could compare his

answers with, because those reports are dated October 27th,

1994. They’re very accurate.

“THE COURT: All right. And you’re telling me that you

are—you feel that you are competent to proceed today, without

any further delay, in representing yourself?

“[DEFENDANT]: From what I see in the way they have

conducted the case, yes, I think so. I think I would be.

“THE COURT: All right. The Court is well aware of the

admonition pursuant to Faretta and the right to self-

representation. [¶] And Mr. Grossman, I don’t think I am even

going to go into it that far and advise her of the consequences of

self-representation and the detriments thereto. Obviously this

is a death penalty case, [defendant] knows that, and she would

not be given any special consideration. [¶] I’m not going to voir

dire her on that because . . . in my view of the situation, her

conduct today at this late stage is either an obstructionist tactic

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or one of delay. It’s tardy. [¶] [Defense counsel] have been on

this case for many, many, many months, and we’re halfway

through the prosecution’s case. And based upon the Marsden

request that got this far, and based upon her attitude that she

displayed to you in the holding cell today, that I overheard, as

far as the raised voices—and again, I didn’t hear what she said,

I just heard her yelling at you—and her demeanor and manner

during the Marsden hearing, it’s clear to me that that request

for self-representation is not in good faith, and I feel that it is

one to obstruct these proceedings and it is untimely. And that

request is . . . denied.”24

b. Prior Marsden hearings

On May 20, 1996, defense conflict panel attorneys Jay

Grossman and Frank Peasley were appointed to represent

defendant; thereafter, conflict attorney David Macher

substituted for Frank Peasley. Defendant made four

unsuccessful attempts under Marsden to substitute appointed

counsel Grossman and Macher at the in camera hearings held

on April 2, May 4, July 14, and July 16, 1998.25

i. April 2 hearing

At the April 2, 1998, Marsden hearing, the trial court

addressed defendant’s letter to the court expressing her

24

We presume the trial court was referring to defendant’s

Marsden motion that it heard and denied on July 16, 1998, the court

day immediately preceding the current Faretta hearing. We discuss

this hearing below.

25

These hearings were held before two different judges: The

Honorable Vilia G. Sherman conducted the trial proceedings

until she recused herself on June 16, 1998. Thereafter, the

Honorable Patrick F. Magers conducted defendant’s trial.

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concerns about the defense DNA testing and the possibility that

samples were lost when the DNA facility that conducted the

analyses relocated its laboratory. Based on counsel Macher’s

representation that no DNA samples were lost during the move,

the trial court found that defendant had a misunderstanding

about the samples and “no grounds here for a Marsden motion.”

When the trial court asked defendant if she had anything

else to call to the court’s attention, defendant answered that she

believed the contents of police reports she possessed contained

errors. The trial court explained to defendant that she should

discuss her concerns with her attorneys. Lead counsel

Grossman informed the trial court that defendant and counsel

had differences with respect to defense strategy and trial tactics,

including whom to subpoena as witnesses. Counsel said that he

suspected that prior counsel had similar problems with

defendant and that prior to trial the issue of “who is in charge of

the trial, the attorneys or [defendant]” will have to be resolved.

The trial court informed defendant that “[t]he law is that

the attorneys have the last word on everything to do with tactics

and strategy.” Defendant told the court, “I’m not dissatisfied

with [her attorneys], and I do not have a conflict with them.”

She added, “All I really want is on the record two or three of the

[police] reports. That’s about it. That is what I’m asking for.”

Because defendant did not have the reports with her at the

hearing, the trial court agreed to talk with her about them at

the next proceeding.

ii. May 4 hearing

At counsel Macher’s request, the trial court held a

Marsden hearing to address counsel’s concern that after he and

lead counsel Grossman met for hours with defendant, she voiced

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“substantial dissatisfaction” with counsel, which “carried over”

to that morning’s proceedings. Macher explained that although

he and Grossman reviewed the evidence with defendant more

than once and explained their defense theory, defendant told

them that she would prepare her own defense. Neither

Grossman nor Macher believed the theory defendant wanted to

present was “based upon any factual matters whatsoever.”

Macher further informed the trial court that defendant said she

would be ready to proceed “this morning.” Both Grossman and

Macher believed that any Faretta request was untimely and

believed defendant’s dissatisfaction related to how counsel

planned to conduct the defense rather than a breakdown in the

attorney-client relationship.

Defendant said that she was “somewhat dissatisfied” with

defense counsel because apparently none of the defense

witnesses included those whom she suggested. When the court

asked defendant whether she wanted new attorneys or to

represent herself, defendant answered, “No. Well, I’m just

explaining the reason as to why I am somewhat dissatisfied.”

Defendant also stated that she planned to meet with current

counsel in the upcoming week to discuss her concerns and asked,

“[C]an I ask the Court if I can hold my decision to see if I want

a new counsel or not until Thursday after I speak to them?”

When the court asked for her to clarify what she was asking,

defendant stated, “Just for four days to find out if I will remain

with them, stay with them until the proceedings start, until the

trial, whatever.” The court explained that it was presently

conducting pretrial motions and that “[t]oday’s the date set for

trial.” Macher expressed concern that defendant might not have

understood that if she waited to bring a Faretta motion until

after she met with counsel during the week, which would occur

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after trial commenced, that the motion would be untimely. The

following colloquy ensued:

“THE COURT: Well, I was about to take that up with her,

but I’m not clear on exactly what it is she’s asking for, to keep

you until she hires somebody else or to represent herself in trial.

So, [defendant], do you want to act as your own attorney

and cross-examine witnesses and conduct the trial and call

experts and be responsible for getting witnesses here and, in

other words, do everything that Mr. Macher and Mr. Grossman

are doing for you now? Is that what you’re asking?

“[DEFENDANT]: Well, from the place that I am at it’s

pretty hard for me to bring witnesses in.

“THE COURT: Exactly. [¶] So are you asking me to

replace Mr. Grossman and Mr. Macher with other attorneys? Is

that what you’re asking?

“[DEFENDANT]: No. I was just asking for a little time,

but if you say we already start trial today—

“THE COURT: All right. A little time for what?

“[DEFENDANT]: To speak to them and show them a

couple of defense points that they could use.

“THE COURT: Well, I think that you will be speaking to

them a great deal during this trial, and I’m sure they’ll be

listening to you and the things you want them to do. They may

not necessarily agree with you, and as your expert lawyers, it’s

up to them to decide how to conduct the case. You need to

understand that.

“[DEFENDANT]: Oh, okay. Okay.”

Before the trial court made its findings, Macher added

that he and lead counsel Grossman reviewed a list of eight

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potential witnesses whom defendant identified as “very

important” to her defense but found none relevant to any

potential guilty phase issues. Macher also informed the court

that defendant’s theory “makes no legal sense and we cannot

pursue it” and that the views he expressed would not change

before he and Grossman next met with her. Defendant told the

trial court that she understood all that Macher had said.

The trial court ruled, “To the extent that this was a

Marsden motion, which I don’t believe it was in the true essence

of the word, the motion is denied.” The court found no

breakdown in the attorney-client relationship, because it found

defendant would have the same complaints with “any other

attorneys.” Next, the trial court ruled that it “[didn’t] truly

believe” defendant was making a Faretta motion; in the

alternative, any Faretta motion was untimely.

iii. July 14 hearing

At defendant’s request, the trial court conducted a

Marsden hearing. Defendant repeated her concerns about lost

DNA samples, specific DNA tests, and the list of individuals she

wanted counsel to call to testify on her behalf. Cocounsel

Macher reported that defendant “has been consistently confused

despite our repeated explanations regarding the purported lost

DNA.” He explained that “DNA evidence has never been lost in

this case either by the government or by the defense team” and

that the defense previously litigated all DNA issues, which were

preserved for appeal. In addition, Macher, Grossman, and the

defense investigator met “face-to-face” with defendant for two

hours at the beginning of May to review her list of potential

witnesses and unanimously agreed that none of the witnesses

would be relevant to the guilt phase defense. Having found no

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grounds for substitution of counsel, the trial court denied the

Marsden motion.

iv. July 16 hearing

On the first day of the prosecution’s case-in-chief, after the

prosecution’s second witness was excused, and out of the

presence of the jury, lead counsel Grossman informed the trial

court that he wanted to address a “Marsden issue.” When

Grossman asked the prosecutor to leave (so the trial court could

conduct a confidential Marsden hearing), defendant said she

wanted him to stay. The trial court cleared the courtroom of

everyone except defendant and her counsel. Grossman informed

the trial court that during trial, defendant expressed

dissatisfaction “with the defense efforts in this case.” Grossman

then stated, “Apparently, part of her complaint is that she wants

to tell [the prosecutor] that he knows she’s innocent and is

prosecuting her improperly. I said, I didn’t think that was a

wise thing for her to tell him because, in my opinion, I don’t

think he believes that.”

Defendant repeated her concerns about the DNA testing

and specifically that her attorneys did not dispute the DNA

testing results with their own defense expert. Macher informed

the trial court that the DNA admissibility issues had been

litigated before and decided by Judge Sherman and were

preserved for appeal. Defendant then complained, “It appears

pretty unfair that the DA has so much proof. It’s like me being

denied the access to an expert.” Grossman then explained that

“[defendant]’s problem is that she feels that we should have the

laboratory that did the analysis for us come to court. [¶] The

problem is that their analysis in many ways is the same, as

harmful as, or more harmful as the state laboratory. And I tried

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to explain to her this morning, there’s no sense calling somebody

that hurts us.” Grossman and Macher made a tactical decision

to not present the defense DNA test results.

The trial court asked defendant if she had anything

further, and she stated, “I just don’t agree with the way they are

conducting the whole entire case. The way they are handling

my case.” The trial court ruled, “The Marsden request, if that’s

a Marsden request, it will be denied.”

c. Discussion

Defendant contends the court erred in denying her

midtrial request for self-representation under Faretta, supra,

422 U.S. 806. We find no error.

In Faretta, supra, 422 U.S. 806, the United States

Supreme Court held that the Sixth Amendment to the United

States Constitution gives criminal defendants the right to

represent themselves. Following Faretta, in People v. Windham

(1977) 19 Cal.3d 121 (Windham), this court considered

questions concerning the timing of a defendant’s self-

representation request. We held that “in order to invoke the

constitutionally mandated unconditional right of self-

representation a defendant in a criminal trial should make an

unequivocal assertion of that right within a reasonable time

prior to the commencement of trial.” (Id. at pp. 127–128.)

Otherwise, “once a defendant has chosen to proceed to trial

represented by counsel, demands by such defendant that he be

permitted to discharge his attorney and assume the defense

himself shall be addressed to the sound discretion of the court.”

(Id. at p. 128; accord, e.g., People v. Bradford (1997)

15 Cal.4th 1229, 1365 [“[A]lthough in a criminal trial a

defendant has a federal constitutional, unconditional right of

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self-representation, in order to invoke that right, he or she must

make an unequivocal assertion of that right within a reasonable

time prior to the commencement of trial.”].)26

We have held that “timeliness for purposes of Faretta is

based not on a fixed and arbitrary point in time, but upon

consideration of the totality of the circumstances that exist in

the case at the time t

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